RLF 
 
 STATE OF NEBRASKA 
 
 REPORT UPON THE 
 OPERATION Of THE 
 
 WORKMEN'S 
 
 COMPENSATION 
 
 LAW 
 
 FOR THE YEAR ENDING 
 NOVEMBER 30, 1915 
 
 ACCIDENTS ARE AN INDUSTRIAL DISEASE 
 "When thou buildest a new house, tl<< 
 thou shall make a battlement, for thy 
 roof, that thou bring not blood upon thine 
 house if any man fall from thence." 
 Deuteronomy, Chapter xxii. 
 
 STATE DEPARTMENT OF LABOR 
 
 GOVERNOR JOHN H. MOREHEAD 
 
 FRANK M. COFFEY 
 
 Deputy Com)n,ixsi'>- 
 
 MAY MORRIS HARRIS 
 
 BERN ICE OWEN 
 
 Stenographers 
 
 Claflin Pr1ntln Co., 
 
 Uni?ersity Place, Nehr. 
 
GIFT OF 
 
 DOCUMENTS 
 
STATE OP NEBRASKA 
 
 REPORT UPON THE 
 OPERATION OP THE 
 
 WORKMEN'S 
 
 COMPENSATION 
 
 LAW 
 
 FOR THE YEAR ENDING 
 NOVEMBER 30, 1915 
 
 ACCIDENTS ARE AN INDUSTRIAL DISEASE 
 
 "When thou buildest a new house, then 
 thou shalt make a battlement, for thy 
 roof, that thou bring not blood upon thine 
 house if any man fall from thence." 
 Deuteronomy, Chapter xxii. 
 
 STATE 
 
 GOVERNOR JOHN H. MOREHEAD 
 
 Commissioner 
 
 FRANK M. COFFEY 
 
 Deputy Commissioner 
 
 MAY MORRIS HARRIS 
 
 BERN ICE OWEN 
 
 Stenographers 
 
 Claflin Printing Co., ^i^gu University Place, Nebr. 
 

 , 
 
 1 1 
 
 ... 
 
WORKMEN'S COMPENSATION 
 
 A New Economic Principle 
 
 The passage of the "Nebraska Workmen's Compensa- 
 tion Law" by the legislature of 1913 introduced a new eco- 
 nomic principle into the affairs of the state government. 
 
 The first workmen's compensation law was enacted in 
 Germany, July 6, 1884* Forty-two of the civilized nations 
 of the world now have such laws. Thirty-six states of the 
 United States have made this practically new economic 
 principle a part of the statute law of the state. 
 
 Workmen's compensation laws are distinctively a prod- 
 uct of modern, social and economic conditions. 
 
 The underlying principle, which is the foundation of 
 workmen's compensation, is that the burden of accidents 
 occurring in any industry shall become a part of the cost 
 of the production in that industry, to the end that the con- 
 sumer of the product will eventually bear the expense of 
 the same. This principle of social right and justice means 
 that the loss occasioned by accidental injury is as much a 
 part of the cost of the article produced as in any other loss 
 ivhich might be occasioned by the destruction of material or 
 the breaking or wearing out, or replacing of machinery and 
 tools of any kind. By most any sort of careful reasoning 
 one will reach the conclusion that compensation paid to an 
 injured workman as the result of an accident "arising out 
 of and in the course of his employment" bears as close rela- 
 tionship to the cost of producing a commodity (in which 
 the employe is engaged at the time of the accident) as does 
 the cost, expense or loss occasioned by broken machinery or 
 equipment. 
 
 :U>655i 
 
< i- V' 
 
 STATE DEPARTMENT OF LABOR 
 
 'Safety First" Suggestions 
 
 The mere installation of safety devices does not discharge the 
 duty of the employer. 
 
 The employer should realize that furnishing safety devices 
 is only his initiation into the campaign of accident prevention. He 
 must insist upon their use at all times. 
 
 Delay is much better than an accident, from both the financial 
 and humane standpoints. 
 
 The employer who provides a safety device to ostensibly com- 
 ply with an order of the inspector, and then requests, encourages, 
 consents to or acquiesces in its non-use is in no situation to insist 
 that his employe who is injured thereby is not entitled to com- 
 pensation because of the non-use of such safety device. Don't 
 forget this. 
 
 No employer is without fault until he has placed in operation 
 in his plant the precautions that ivill reduce accidents therein to 
 the inevitable class. 
 
 Industrial accidents are of two classes, the inevitable and 
 the preventable. 
 
 Inevitable accidents do not result from the fault of anyone, 
 and the loss occasioned thereby is naturally a part of the cost 
 of production. 
 
 Preventable accidents result from the fault of someone. 
 
 As between the employer and the employe, they result either 
 from the failure of the employer to place in operation such pre- 
 cautions or to use such safety devices, or to exercise due care. 
 
 As to injuries resulting from accidents happening on account 
 of the fault of the employer, the employers, by such a course of 
 conduct, recognize the expense thereof as a legitimate part of the 
 cost of production. 
 
 For years Nebraska employers carried liability insurance to 
 indemnify themselves against loss for injuries caused by such 
 accidents. 
 
 Certainly the cost of such insurance has been treated as a 
 part of the expense of operation, and, therefore, is a part of the 
 cost of production, to be borne ultimately by the consumer. It 
 would be a fallacy to even imagine that the aggregate of the 
 premiums paid for such insurance do not so far exceed the li- 
 abilities of the employer for such injuries as to pay the expenses 
 of such insurance, and leave the companies writing it a profit. 
 Insurance is business, not sentiment. It is carried on for profit. 
 
FRANK M. COFFEY 
 Deputy Commissioner of Labor 
 
STATE DEPARTMENT OF LABOR 
 
 Short "Safety First" Sermons 
 
 The employe who thinks he can learn thinks a great truth. 
 
 Carefulness costs you nothing and its value cannot be meas- 
 ured. 
 
 Eight out of ten accidents would never happen if the eight 
 injured men had the safety ha^it. 
 
 Accidents cost those who are injured pain, worry, suffering, 
 loss of time and wages. Why not avoid them? 
 
 The principal factor in accident prevention is the application 
 of good common sense. 
 
 Working for "safety" is the highest form of service. Safety 
 men are humanity's greatest friends. 
 
 It takes only a moment of carelessness to cause a lifetime 
 of suffering. 
 
 Guards are placed on machinery for the protection of the 
 employe. Don't operate the machinery unless guards are in place. 
 
 It is the chance takers who make widows and orphans. 
 
 Every warning sign means a danger is pointed out there. 
 Take the safety way. 
 
 Life is too short to take chances. Regrets don't bring back 
 lost legs, arms and eyes. 
 
 Recklessness is no indication of courage. Brave men are al- 
 ways cautious. 
 
 Do not work with defective chains, cables, tools or appliances 
 of any kind, or even in an unsafe place. Carefully examine same 
 and report dangerous conditions to your employer. 
 
 Wear goggles when working around circular saws, chipping, 
 handling acid, cutting cables, working at emery wheels, etc. 
 
 A careful man's greatest risk of injury is because of careless- 
 ness on the part of someone else. Watch the other fellow. 
 
 Get the safety habit. Don't take chances. Learn all the rules, 
 understand your work thoroughly. Study the dangers incident 
 thereto and avoid them. Think before you act. 
 
 Safety appliances are placed on 'machinery for your protec- 
 tion and benefit.* Use them. 
 
 Carelessness is the cause of many advoidable injuries. In 
 fact it can safely be said that carelessness in some form or other 
 is responsible for more accidents than any other specific cause. 
 Carelessness sometimes takes the form of downright recklessness, 
 although it is more frequently manifested as mere thoughtless- 
 ness or indifference. 
 
 Every workman should be thoroughly impressed with the fact 
 that his safety and the safety of his fellow workmen depends upon 
 his own carefulness. , 
 
WORKMEN'S COMPENSATION LAW 
 
 The First Year of Compensation 
 
 The Nebraska compensation law was passed by the thirty-third ses- 
 sion of the legislature (1913-1914) and was designated as "Workmen's 
 Compensation Law of 1913." Under the provisions of the constitution the 
 law would have been in effect July 18, 1913. Those opposed to making 
 the principle of compensation for work accidents regardless of fault a 
 part of the statute law of the state circulated a petition and the law was 
 held in abeyance until after the referendum election in November, 1914. 
 In the November election of 1914 the people of the state approved the 
 law and compensation for work accidents regardless of fault become a 
 part of the statutes of Nebraska, December 1, 1914, by a proclamation 
 issued by Governor John H. Morehead as directed by the provisions of 
 the initiative and referendum law. 
 
 The Principle of Workmen's Compensation 
 
 The principle of workmen's compensation is that industry in general 
 should bear the financial burden of all industrial accidents rather than 
 the workers who happen to be the victims of particular accidents, and that 
 the only way this can be accomplished is through the agency of the em- 
 ployer who, in computing costs and fixing the price of his finished product 
 will include the industrial losses due to accidents. 
 
 Industrial operations being broadly considered, the question of direct 
 fault is not material. The fact that loss of bodily faculty and regular 
 wages occurs entitles the victim to compensation unless his injuries have 
 been received through his own wilful intent. In this concept of social ob- 
 ligation the compensation principle differs from the old system of em- 
 ployers' liability, under which the employer paid damages only where 
 the accident was due to his fault or the fault of his servants. 
 
 Further Extension of Employers' Liability 
 
 The liability of employers under the statute could have been and un- 
 doubtedly will be further increased by the enactment of safety requirements 
 and regulations, the violation of which would imply negligence and create 
 liability on the part of the employers. This phase of the subject is illus- 
 trated by federal law. Under the safety appliance act affecting interstate 
 railroad employes, as interpreted by the United States supreme court, the 
 employer is under an absolute duty not only to install specified safety 
 appliances but to keep them in order. The original argument of the rail- 
 road companies was that, having installed safety appliances as required 
 by the statute, their full duty was performed by using reasonable care 
 
8 STATE DEPARTMENT OF LABOR 
 
 in keeping them in order, but this contention the supreme court overruled, 
 deciding that the duty imposed upon the railroad company to install the 
 safety appliances was a continuing one and that the company was liable 
 to an employe injured from failure to keep the appliances in order. From 
 this it is apparent that if compensation had not been proposed the em- 
 ployers' liability would ultimately have been greatly increased both by 
 the removal of the common law and statute defenses and the adoption of 
 strict safety requirements. Since it is certain that liability laws, based 
 as they are upon negligence or the violation of a statutory duty, can never 
 reach all accidents, as many can not be traced to legal fault of any kind, 
 an employer would have found himself under the burden of an expensive 
 liability law without affording protection to all of his employes. 
 
 Questions Should be Considered Separately 
 
 Each of the problems arising under the compensation act should be 
 considered separately, and that much of the confusion that exists upon 
 the subject is due to the fact that public opinion with regard to a par- 
 ticular statute is controlled and influenced by some particular feature of 
 the law, when, as a matter of fact, that particular feature is merely inci- 
 dental and not essential to the operation of the principle of workmen's 
 compensation. This became apparent, for example, when persons were 
 found criticising compensation legislation in general, when as a fact their 
 antipathy had been aroused merely by reason of a particular defect or 
 through faulty method of administration which can easily be cured ; on 
 the other hand, persons are found praising aparticular method of ad- 
 ministration, entirely unmindful of the fact that equally fortunate results 
 are reached under other methods. 
 
 The principle of granting compensation to injured workmen, regard- 
 less of fault, is the essential attribute of a compensation act; that principle 
 should be tested upon its own merits. The methods of administration 
 and of insuring the payment of compensation are entirely separable from 
 the consideration of the principle of workmen's compensation. 
 
 Prior to the enactment of the Compensation Law, Nebraska had prac- 
 tically no legislation on its statute books providing for industrial safety. 
 Other states have had factory inspection laws and acts of a similar 
 nature designed to provide safety and sanitation in all working places. 
 The absence of "any law of this nature in this state means that there is 
 an open field in which to work that must be pioneered in such a manner 
 as to secure the best results and to efficiently surround employes with 
 safe conditions of employment. One of the great objects of the com- 
 pensation act is to reduce the number of accidents occurring in the in- 
 dustrial field in this state. This can be best brought about by enlisting 
 the active support and cooperation of both employer and employe. Each 
 preventable accident that is allowed to take place, represents a costly 
 error in social efficiency for the value of a human life cannot be estim- 
 ated, entirely, in dollars and cents. 
 
WORKMEN'S COMPENSATION LAW 9 
 
 Necessity for Safety First 
 
 When the appalling number of industrial accidents is considered the 
 necessity for the Safety First movement is convincingly apparent. A 
 multitude of strong men are each year being rendered useless to the 
 community and non-supporting to themselves and families as a result of 
 industrial accidents. The toll in death, in permanent disability and tem- 
 porary loss of time, with suffering arid want as the attendant on mis- 
 fortune, is startingly large. The propaganda of Safety First has been 
 so widely diffused that people everywhere know what it means. The 
 agencies teaching the principles of this life saving creed are the insurance 
 companies and the large individual employers of labor. It is gratifying 
 to think of the work that is being accomplished along this line. The 
 result is so apparent that every employer of any considerable number of 
 men remarks on its wonderful results. Even in remote logging camps 
 where accidents are only occasionally reported, and where doctors are not 
 immediately available, in response to the question, "Was medical aid 
 furnished by you?" the answer is written in, "First Aid service at camp." 
 Wherever "First Aid" is, "Safety First" has been there. 
 
 Safety Appliance 
 
 It is hardly necessary to refer to the objective of safety appliances. 
 The state, in its mature judgment, as voiced by its legislature, should 
 make certain requisitions on employers operating hazardous industries. 
 It should impose obligations to see that these requisitions are met. Safety 
 appliances wherever possible must be installed. The state's interest in 
 this subject is ostensibly one of economic value, yet everyone knows, who 
 has given public movements a moment's thought that back of every law 
 like this is the sentiment of humanity dwelling in the public heart. To 
 protect human life and guard against injury to body and limb are cardinal 
 elements in human life itself. The necessity for collective co-operation 
 is so urgent and appalling in this age of tremendous operations that the 
 individual is being looked after by the public. The body politic, which 
 has heretofore been considered an individual without soul or sentiment, 
 has developed into an entity possessing all these attributes which dis- 
 tinguish man from the brute creation. Therefore the public in the great 
 industrial world is solicitious regarding the safety of its individual. It 
 goes with him into the mines and insists that rational condtions must be 
 maintained; that avenues of escape must be provided for in case of un- 
 expected calamity. It accompanies him to the mills, smelters, workshops 
 and logging camps and waits until safety appliances are installed to 
 guard the thoughtless and unwary from the exposed belts, shaftings, 
 gearings, pulleys, saws and protruding set screws. 
 
10 STATE DEPARTMENT OP LABOR 
 
 Duty of Employe 
 
 The wisdom of guarding and protecting dangerous features in the 
 industrial plants, is very apparent from the view-point of the employer 
 and should also be endorsed and assisted in by the employe. For while 
 pecuniary compensation relieves the injured workman and his dependents 
 from actual want and prevents them from becoming a burden on society, 
 yet it does not restore a life or. rebuild a broken frame. Prevention 
 of the accident is far better than any possible assistance after the acci- 
 dent has occurred. Precaution is less burdensome than regret. There 
 is beyond the question of "Safety Provisions" a pronounced obligation 
 on the part of the employe to reduce or eliminate the possibility of pre- 
 ventable accidents. To the workman the preservation of life and limb 
 should be an ever present influence to stimulate caution. This should be 
 a personal matter with thoughtful men in every kind of employment. 
 Familiarity with danger too often results in the relaxation of caution 
 with the result that accidents happen that could have been avoided. The 
 employe should at all times be cautious, with mind and thought constantly 
 alert to prevent the accidents which so often occur from thoughtlessness 
 and carelessness. 
 
 
 
 The Law's Operation and Application 
 
 During the year ending November 30, 1915, there were approxi- 
 mately 8,000 reports of accidents filed in the State Department of Labor. 
 This number is admittedly far short of the number of work accidents 
 which should have been reported to the department. Crude and totally 
 inadequate blanks for reporting accidents under the compensation law 
 were put into circulation soon after the law became effective. These 
 blanks furnished none of the information essential if an intelligent resume 
 of the operations of the law was to be assembled and published. New 
 blanks were prepared and furnished. The change of blanks caused mis- 
 understandings and delays in making reports, and the result has been 
 that many of the reports now on file contain no information which may 
 be of service in tabulating the operations of the first year of the "Work- 
 men's Compensation Law of 1913." Many employers who have carried 
 their own insurance have settled work accidents suffered by their em- 
 ployes under the provisions of the compensation law, but have failed and 
 neglected to make the reports to the department. Several of the insurance 
 companies are likewise guilty of neglect in reporting all of the cases 
 which they have settled under their policies. This makes the assembling 
 of data and statistics difficult. 
 
 The Nebraska compensation law needs amending in many instances. 
 The more specific suggestions for amendments, as time and experience 
 will suggest, will be more fully covered in the biennial report of this 
 department. But the need of some method of administration is so ap- 
 parent that this preliminary report of the operation of the law would 
 be incomplete without calling attention to the need. Under the com- 
 
WORKMEN'S COMPENSATION LAW 11 
 
 pensation law as it now reads settlements may be made between the 
 parties. If they cannot agree then the controversy may be submitted to 
 mutual arbitration. If mutual arbitration cannot be agreed upon, then 
 the matter is submitted to a court of equity. Under this method of 
 settlements many injured employes are at the mercy of the employers 
 and the representatives of insurance companies. There are a large num- 
 ber of reports on file in the department of labor which on the face of 
 the report show that the employe has not received the full amount of 
 benefits to which he is entitled. The injured employe does not understand 
 sufficiently just what his rights are and to avoid the expense of legal 
 advice he submits oftentimes to a settlement which is far from what 
 the law authorizes. The purpose -of the compensation law is to get relief 
 to the injured employe and his family when that relief is needed and 
 without long drawn out negotiations and litigation. The representative 
 of the insurance company too often knows the immediate ned of relief of 
 the injured employe and proceeds to negotiate and consume time before a 
 settlement is proffered. The pressing needs of. the injured employe and 
 his family often under the present method of settlement necessitates 
 an acceptance of terms of settlement not in accord with the provisions 
 of the law. The employer pays a premium to the insurance company on 
 the theory that the injured employe and his dependents will be com- 
 pensated according to the provisions of the law, and that there is to be 
 no sharp practice or shaving down of these settlements as to benefits. 
 The law must be so amended that there will be some board or some in- 
 dividual clothed with sufficient judicial powers that an immediate order 
 may be made covering each accident. Compliance with this order or find- 
 ing should be enforced during a review by a court of equity, if such 
 review be desired by either party. 
 
 The fact that nineteen states out of thirty-one, which have com- 
 pensation laws, have adopted the two, weeks' waiting period, does not 
 necessarily establish the wisdom of allowing that Jength of time for an 
 injury to develop and determine if it justifies payment of compensation. 
 The Colorado compensation law provides a waiting period of twenty-one 
 days and the Federal statute contains a provision for fifteen days. Six 
 states have a waiting period of one week, two states have ten days. 
 Oregon, Washington and Vermont have no waiting period. Nebraska and 
 Nevada have waiting periods of two weeks, and if disability extends 
 beyond eight weeks, the compensation is paid from the date of the in- 
 jury. Wisconsin has a waiting period of one week, and pays compensa- 
 tion from date of injury in the event of disability extending beyond four 
 weeks. Illinois has a waiting period of six days. 
 
 The fact that there are few specific amounts set out in the Ne- 
 braska law for certain injuries justifies the shortening of the waiting 
 period. Many of the reports filed in the department of labor furnish 
 ample argument for the change. Take the loss of a finger, the loss of 
 a toe. Quite often the employe suffers an injury which causes the ampu- 
 tation of a finger or toe and is able to return to his employment within 
 the fourteen days waiting period and therefore receives no compensation 
 
12 STATE DEPARTMENT OF LABOR 
 
 for the dismemberment. A careful examination of the reports filed under 
 the Nebraska compensation law indicates the justice of changing the 
 waiting period in the law to seven days. The primary purpose of com- 
 pensation laws is to compensate the injured employe for lost earning 
 power, and the waiting period is established to discourage malignering. 
 Whatever the period of waiting may be the injured employe must bear 
 the total of the lost earning power. 
 
 There were 2,222 complete reports filed under the Nebraska law 
 for the first year of its operation. Out of this total 1,617 were cases 
 in which there was no compensation paid and 605 in which compensation 
 was paid. The average number of days lost by the injured employe in 
 compensation cases was 19.4, while the average number of days lost by 
 the injured employe in non-compensation cases was 3.1. Practically 27 
 per cent of the total number of completed cases were compensation cases. 
 This leaves over 70 per cent of the work accidents in which the injured 
 employe must assume the total lost earning power by reason of the two 
 weeks waiting period. This is not an equitable division of the time pre- 
 sumed to be necessary in order to wait out the effects and results of the 
 injury in order to determine whether the injury is one in which com- 
 pensation should be paid or whether the injured employe is guilty of 
 malignering. 
 
 The purpose of a waiting period is of course two-fold to relieve the 
 administration of a compensation act from the burden and confusion of 
 payments for trifling injuries, and to eliminate as far as possible the danger 
 of malignering, that might arise with no waiting period. With the wages 
 and cost of living at their present levels, a very large number of families 
 are necessarily living from hand to mouth, and in all such cases fourteen 
 days without compensation in time of accident to the breadwinner causes 
 real hardships. There seems to be good reasons for reducing the waiting 
 period to seven calendar days. 
 
 Medical Attention 
 
 Section 111 of the Workmen's Compensation law reads as follows: 
 Sec. 111. During the first twenty-one days after disability begins 
 the employer shall be liable for reasonable medical and hospital services 
 and medicines as when needed, not however to exceed two hundred 
 dollars in value, unless the employe refused to allow them to be furnished 
 by the employer. Provided, however, where the injured employe refuses 
 or neglects to avail himself of such medical or surgical treatment, the 
 employer shall not be liable for any aggravation of such injury due to 
 said neglect or refusal. 
 
 An adherence to the provisions of this section works many incon- 
 sistencies and results in an injustice to the injured employe in many 
 cases. An employe receives an injury which upon the first examination 
 by the physician is deemed not very serious. But the injury becomes 
 serious, in that blood poison sets in. The attending physician applies 
 all his skill to prevent serious results, but to no avail. Amputation is, 
 
WORKMEN'S COMPENSATION LAW 13 
 
 necessary. The twenty-one days have elapsed in the meantime. Strictly 
 following the section of the law the employer or insurance company 
 are not liable for any part of the $200 maximum for medical attention 
 or hospital services necessary after the twenty-one days have elapsed. The 
 amputation, necessitating surgical skill and hospital services, is a direct 
 result of the injury suffered in the course of employment. The employe 
 must bear all of the cost of the amputation. Again, a workman while 
 operating a lathe receives a piece of steel in the eye. The physician hesi- 
 tates to use the knife in removing the piece of steel from the eye, hoping 
 that it will work its way to a point where it may be removed without 
 an operation and thus avoid the danger of loss of eyesight. But the 
 physician's hopes are not realized. An operation is necessary. The twenty- 
 one days have elapsed in the meantime. The employer or the insurance 
 company are not responsible for the cost or any part of the cost of the 
 operation for the reason that it was after twenty-one days, though the 
 operation was a direct result of the injury received in the course of em- 
 ployment. There are an endless number of these illustrations. And in 
 each the attending physician uses his knowledge and skill to save the in- 
 jured employe the necessity of a dismemberment and the dangers incident 
 to an operation, and the employer the loss of an employe and the money 
 cost of dismemberments and operations. The twenty-one days' limitation, 
 should be striken out of the law. Possibly a more reasonable limitation: 
 may be inserted, but it is doubtful whether there should be any limitation, 
 as to time. 
 
 Graduated Benefits 
 
 The Nebraska compensation law provides that where a deceased em- 
 ploye leaves a widow wholly dependent upon him for support, and under 
 the provision of the law a wife is presumed to be wholly dependent upon 
 a husband with whom she is living at the time of the accident, shall re- 
 .ceive 50 per cent of his wages for a period of 350 weeks, subject to a 
 maximum of $10 and a minimum of $5 per week. The number of de- 
 pendent children does not increase or decrease the amount of the com- 
 pensation. Several of the states have provisions that the compensation 
 payable to a widow shall be graduated according to the number of de- 
 pendent children. If there be no dependent children then the widow 
 shall receive 30 or 40 per cent of the weekly wage of her deceased hus- 
 band. But if there be dependent children then the percentage shall in- 
 crease for each child until a reasonable maximum percentage has been 
 reached, the weekly payments on account of each child to continue until 
 the child has reached an employable age. There seems to be no need of 
 any reason or argument why such an amendment should not be made 
 to the compensation law. True, if the widow alone is to be considered 
 then there would be no difference in the lost earning power of a deceased 
 husband. But if the dependent children are to be taken into account the 
 widow with children has suffered a greater loss and handicap than the 
 childless widow. The lost earning power of a deceased husband mean& 
 more to a widow with children than it does to a childless widow. 
 
14 STATE DEPARTMENT OF LABOR 
 
 Administration 
 
 Contrary to a large majority of the compensation states, the Nebraska 
 law provides no machinery for the administration of the compensation law. 
 The law provides rules in accordance with which settlements are supposed 
 to be made between the employer and the employe. But in actual practice 
 these settlements are made between the insurance company and the em- 
 ploye. Only when no satisfactory settlement can be reached is the state 
 brought into the matter, by a petition to a court of equity, or which there 
 are many in the state. The court is required to hear such witnesses as are 
 presented and in a summary manner decide the merits of the controversy. 
 
 Under this system one of the important purposes of a workmen's 
 compensation law, the making accessible of full and complete relief for the 
 injured employe or his dependents at the time most needed, is to a large 
 degree defeated. 
 
 The administration of a compensation law through the courts, a 
 number of separate and scattered tribunals already overburdened by their 
 ordinary business and more or less likely to be unfamiliar with the lav/, 
 results harmful in that serious delays occur, unnecessary fees paid to 
 attorneys and court costs eat up a large portion of awards, settlements in 
 violation of the law are frequently sanctioned by the courts or even ordered 
 by them on their own initiative, conflicting opinions are handed down, con- 
 fusing and complicating the whole system and making justice a matter 
 of location, not of law. The delay and expense, the unequal footing of the 
 parties in the courts, and unfamiliarity with and inherent fear of court 
 procedure, all operate to defeat the very purpose of a compensation law. 
 
 The purpose and ends of compensation laws are founded in a broader 
 conception of the inter-relationship existing between the employer, whose 
 enterprise and capital are invested, and the employe, whose labor is neces- 
 sary to make that investment profitable. Their interests are identical and 
 neither should be discriminated against to the extent of being forced to 
 bear the entire loss attending industrial accidents occurring in the opera- 
 tion of industries in which they are jointly engaged. The conclusion is 
 inevitable that equal justice to all require that the industry shall bear 
 the expense of accidents incident to its operation. With this thought 
 firmly fixed there will follow a strenuous and combined effort to prevent 
 industrial accidents, which, after all, is more to be sought than any pay- 
 ment of compensation. The doctrine that an employer, or the product 
 that he is manufacturing or the business in which he is engaged, shall 
 be responsible for the cost of injuries occurring to workmen, without 
 any consideration as to where the fault may lie, is practically a reversal 
 of the common law rules governing statutory liability of employers. With 
 the certainty that every industrial accident will call for the payment of 
 money the employer seeks to distribute the money cost as a part of the 
 selling price of his products. There are some employers who are unable 
 to make such distribution by reason of fixed selling prices and statute 
 limitations and competition. To protect himself against the money cost 
 of industrial accidents the employer pays a premium to an insurance 
 
WORKMEN'S COMPENSATION LAW 15 
 
 company to carry the risk. The employer pays for the full benefits 
 running to the injured employe or his dependents and should feel and 
 know that these benefits have been received by the employe or his de- 
 pendents. The injured employe or his dependents is entitled to these 
 benefits as a matter of right. 
 
 There is an old saying that you can lead a horse to water but you can't 
 make him drink. There are some employers and some insurance companies, 
 as the first year's operation of the law has amply shown, who need force- 
 ful direction and orders to make them do the things that the law re- 
 quires them to do. Mutual settlements of industrial accidents is not 
 practical or has not proven to have been feasible or adequate. There must 
 be some board or individual which has the authority to supervise and 
 administer the compensation law, to the end that the injured employe and 
 his dependents receive what the law provides that he shall receive. Mutual 
 settlements between the parties defeats the purpose of a compensation 
 law by reason of not getting the relief to the injured employe and his 
 dependents quickly and without unnecessary waits resulting from nego- 
 tiations and disagreements between parties. Some method of directing 
 settlements and determining the rights of parties must be provided. Re- 
 ports as filed in the state department of labor for the past year show 
 that a large per cent of the industrial accidents have not been settled 
 according to the provisions of the law simply because there was no mode 
 of direction and supervision of these settlements. The money loss in 
 most every case in which the settlement has not been in accord with the 
 provisions of the law has been borne by the injured employe and his de- 
 pendents. This condition of affairs must be changed if society is to do 
 its full duty to the men and women who suffer industrial accidents. 
 
 Section 123 of the compensation law reads as follows: "No policy 
 of insurance against liability under this article shall be made unless the 
 same shall cover the entire liability of the employer thereunder and shall 
 contain an agreement by the insurer that, in case the employer shall be 
 or become insolvent, or in case an execution upon a judgment for com- 
 pensation is returned unsatisfied, an employe of such employer or the 
 dependents of a deceased employe who shall be entitled to compensation 
 under this article may enforce their claim or claims to compensation 
 against the insurer to the same extent that the employer could have en- 
 forced his claim against such insurer had he paid compensation. No suit 
 shall be maintained for the collection of premiums upon any such policy 
 of insurance, unless such covenant is contained in said policy. No com- 
 pany or association shall enter into any such contract for insurance unless 
 such insurer shall have been approved by the state insurance commis- 
 sioner as provided by law. 
 
 Under this section the insurance company is bound to pay the total 
 liability of the employer under the provisions of the compensation law. 
 The insurance company collects a premium based on the theory that 
 such payments shall be made. Settlement for work accidents according 
 to the provisions of the compensation law is a part of the contract of 
 employment entered into by and between the employer and employe. The 
 
16 STATE DEPARTMENT OF LABOR 
 
 employer has not kept his contract of employment unless he insists that 
 the insurance company pay to the injured employe or his dependents 
 all the benefits set forth in the compensation law. Any other settlement 
 secured by an insurance company with an injured employe or his depend- 
 ents not only does the employe an injustice and withholds from him his 
 legal rights, but is a breach of the contract of employment. 
 
 An employer who buys insurance from an insurance company not 
 licensed to do business in Nebraska is not carrying out the plain pro- 
 visions of the law, and is not giving the employe the protection against 
 the employer's insolvency which the law intended should be given. 
 
 The Problem of the Minor 
 
 The minor who receives a serious and permanent disability injury 
 presents a problem only partially solved through the continuance of the 
 weekly payments provided by the compensation law. These payments 
 should be sufficient to permit the minor to obtain special training along 
 technical or commercial lines and thereby become fitted for remunerative 
 wage-earning work in the future. 
 
 A boy of sixteen, left with one arm, who was earning $3 or $4 
 a week at the time of his injury, can be provided with employment paying 
 the same rate of wages that he was earning when the injury occurred. 
 Usually such employment offers the minor no prospect of an improve- 
 ment in his earning capacity, and full justice is not done him under the 
 provisions of the compensation law. 
 
 There should be a provision in the compensation law which will give 
 the minor who earns a low rate of wages and who receives permanent 
 injuries a weekly compensation based upon his probable earning capacity 
 at the time he attains the age of twenty-one. Such a statute has been 
 in effect in England since 1906, the English law providing that "during 
 total incapacity of a workman who is under twenty-one years of age 
 at the date of the injury, and whose average weekly earnings are less than 
 20 shillings, 100 per cent shall be substituted for 50 per cent of his aver- 
 age weekly earnings, but the weekly payments shall in no case exceed 10 
 shillings." 
 
 It might be possible to work out a solution of the problem of the minor 
 if it was provided that in such a case, if a minor received a personal injury 
 which permanently incapacitates him, in whole or in part, it shall be con- 
 clusively presumed that his average weekly wages are not less than $12. 
 
 Compensation for Public Employes 
 
 Section 106 of the compensation law reads as follows: 
 Section 106. The terms 'employe' and 'workman' are used inter- 
 changeably and have the same meaning throughout this article; the said 
 terms include the plural and all ages and both sexes, and shall be con- 
 strued to mean: 
 
WORKMEN'S COMPENSATION LAW 17 
 
 (1) Every person in the service of the state or of any governmental 
 agency created by it, under an appointment or contract of hire, express 
 or emplied, oral or written, but shall not include any official of the state, 
 or any governmental agency created by it, who shall have been elected 
 or appointed for a regular term of office, or to complete the unexpired 
 portion of any regular term. 
 
 The intent of the legislature seems to be plainly set out in the above 
 section that all employes of the state or of any municipal subdivision of 
 the state are under the compensation law unless an election to the con- 
 trary has been filed with the insurance commissioner. The distinction 
 is made as to the use of the word "employe" and the word "workman" 
 from the general meaning attached to the word in its everyday use. A state 
 treasurer is primarily an employe of the state, but is designated in the 
 statute as an officer. One who is appointed to fill an office for which there 
 is a statutory term of service provided is termed an officer. One who is 
 elected to fill or appointed to complete a term of office for which there is 
 statutory definiteness as to time of service would be an officer and not 
 an employe or workman, and therefore would not be under the compen- 
 sation law. But employes of the state and employes of municipal sub- 
 divisions of the state, including sanitary districts, drainage districts, school 
 districts, and all employes of municipalities not elected or appointed to 
 an office created by statute with definite terms of service, would be under 
 the provisions of the compensation law. 
 
 The members of the state militia should be brought under the com- 
 pensation law. It is a common custom, and a right one, too, when a 
 member of the state militia is injured while executing the orders of his 
 superior officer, or as a matter of fact "while in the course of his em- 
 ployment" suffers an injury that the injured employe or his dependents 
 present a claim to the legislature, and, after traveling the rocky road which 
 most such claims must travel, the claim is finally allowed at the end of 
 two or three years waiting. The amount of the award is not based on 
 any fixed method of ascertaining lost earning power, but is based on the 
 sympathy of the members of the claims committee and the members of 
 the house and senate. An injustice is sometimes done the state in grant- 
 ing the larger amount as well as the employe who is granted the smaller 
 amount. 
 
 Compulsory or General Law 
 
 The theory upon which the modern method of workmen's compensation 
 for injuries received in the course of employment must rest is that it is 
 just and reasonable that employes, or their dependents, should be paid 
 compensation for such injuries from the business in which they are re- 
 ceived, and that it is not just, or a wise social policy, to leave employes 
 who are thus injured, or their dependent families, to destitution, or the 
 inadequate aid of organized and unorganized charity. 
 
 Chapter 67, Section 10, of the laws of Nebraska, adopted in 1911, pro- 
 Tide that owners and superintendents of all factories, workshops, mills 
 
18 STATE DEPARTMENT OF LABOR 
 
 or mechanical establishments shall report all fatal accidents and all acci- 
 dents which cause the injured employe to lose more than fourteen days, 
 to the state department of labor. All accidents suffered by railway em- 
 ployes and all accidents suffered by patrons of railway companies must 
 be reported to the state railway commission. All accidents suffered by 
 employes under the compensation law must be reported to the state de- 
 partment of labor. These and other methods of gathering data declare 
 the state's concern with all such injuries, their cause and results. It is a 
 shock to one's sense of justice that* when many injuries thus reported are 
 investigated, it is found that no compensation can be obtained by the 
 injured for their incapacities, or by their dependent families, in case of 
 death whereas in other cases, under like circumstances and conditions, 
 compensation is provided. This is due to the fact that the Nebraska com- 
 pensation law is an elective act, so called, and not a general law, uniform 
 in its application. 
 
 The bad effects of this system of discrimination is not only unjust 
 to the injured persons and their families, but to society in general. In- 
 stances of this injustice are many and appear through children in the 
 schools, in the work of charities, and in cases reported to the state depart- 
 ment of labor when it is learned that the employers have either rejected 
 or are not under the compensation law. 
 
 One of the first essentials of law is that it should apply equally to all. 
 "Equality before the law." The Nebraska compensation law should be 
 so amended as to make it a general law, applying to all employers and 
 employes and their dependents, within the classes mentioned in the com- 
 pensation law. If a constitutional amendment is necessary to permit the 
 enactment of such a general law, proper steps for such an amendment 
 should be taken. 
 
 To avoid any misunderstanding in the consideration of this matter, 
 it should be remembered that the words "compulsory" and "elective" which 
 are used in the discussion of compensation acts, are used only in a very 
 technical constitutional sense. A general law, applying as here mentioned, 
 to those affected by occupational injuries, would be in its essential nature 
 no more compulsory than other equal and general laws. 
 
 The Nebraska compensation law should be so amended, as to include 
 all employers of one or more employes. 
 
 Fatal Accidents 
 
 Only six fatal accidents have been fully reported to the department 
 of labor. There are several fatal accidents under the compensation law, 
 which, owing to the fact that the employer and the insurance company 
 have not made a complete report to the department, are not included in 
 the summary showing the fatal accidents under the law for the year just 
 closed. Until some board or individual is clothed with sufficient authority 
 to direct and administer the compensation law this haphazard method 
 must continue to prevail. 
 
 According to the information given in the report of these six fatal 
 
WORKMEN'S COMPENSATION LAW 19 
 
 accidents, they are classified as to fault as follows: Two, incident to 
 employment; three, fault not placed, and one, the fault of the employer. 
 It will be noted that the two cases in which the fault was not placed upon 
 the employer nor the employe, but simply accidents which just seem to 
 have to happen, the beneficiaries received $2,500 in each instance. But 
 in the three cases in which the fault could not be placed from the in- 
 formation given in the reports, the representative of the employer or the 
 insurance company was able to strike a much better bargain as to money 
 terms of settlement, and the beneficiaries of each one of these three 
 killed employes received $731.39. In the one case in which the fault 
 was plainly that of the employer a settlement and release was secured 
 from the beneficiaries for the sum of $2,054.81. 
 
 The compensation law provides that the payment for an injury re- 
 sulting in death shall be 50 per cent of the wages received by the em- 
 ploye at the time of the injury, for a period of 350 weeks, subject to a 
 maximum payment of $10 per week and a minimum of $5 per week. In 
 each one of the cases included in the table the employe was receiving the 
 maximum wage. This would entitle the beneficiaries to $3,500 in each 
 case, with $100 additional as a burial benefit. There is no provision in 
 the compensation law for any method of settling a fatal accident except 
 that the provisions of the law be followed, provided employer and employe 
 are under the compensation law. An employe under the compensation 
 law cannot waive its provisions before the accident happens. But after 
 the accident he or his beneficiaries may settle according to his or their 
 own needs and notions. In the absence of some specific method of direct- 
 ing and supervising settlements and commutations in the law the "needs" 
 and "notions" of the injured employe and his beneficiaries vary and the 
 ever present desire of human beings to strike a bargain defeats the intent 
 and purpose of the law, and the widows of two deceased employes who 
 .received the same maximum wage do not receive the same payments in 
 compensation. 
 
 The legislature without doubt intended that the widow of an employe 
 injured in the course of his employment and receiving more than $20 per 
 week, should receive 50 per cent of his wages for 350 weeks, or $10 per 
 week for 350 weeks, aggregating $3,500, plus the $100 as a burial benefit. 
 It was not thought best that the widow be paid the total amount in one 
 payment unless and until the district court found that the best interests 
 of the widow and dependents could best be served by such lump sum pay- 
 ment. Plainly stated, the legislature never intended that the widow and 
 dependents of a deceased employe, in case a lump sum settlement was 
 permitted by the district court, that the amount of money received by 
 the widow and "dependents should be arrived at through the different whims 
 of different district courts and the ability to negotiate a bargain by dif- 
 ferent employers and representatives of different insurance companies. 
 The widow and children of Jones are entitled to the same compensation 
 for the loss of earning power of a husband and father as the widow and 
 children of Smith, provided Jones and Smith both received in excess of 
 $20 per week at the time of the injury resulting in death. 
 
20 
 
 STATE DEPARTMENT OF LABOR 
 
 The state must provide some board or commission or individual whose 
 duty it will be to protect the interests of all parties in the administration 
 of the compensation law. 
 
 As a rule compensation claims should be payable as annuities and 
 should be capable of commutation to a lump sum payment only on appli- 
 cation of either party to some board or commission or court. Wage- 
 i o rnera or the dependents of wage-earners are too often little used to the 
 handling of large sums of money and the payment in the form of an 
 annuity prevents the money being misappropriated. But there are cases 
 where the possession of a little capital will enable the wage-earner or his 
 dependents to become self-sustaining by the purchase or settling up of 
 a little business. In these cases a lump sum payment should be made, 
 and the board or commission or the court should be plainly authorized to 
 order such lump sum payment upon the application of either party, pro- 
 vided it be found to be to the best interests of the injured employe or his 
 beneficiaries. 
 
 Fatal Accidents 
 
 Whose Fault 
 
 No. 
 Cases 
 
 Compen- 
 1 sation 
 Paid 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Average 
 Pay- 
 ment 
 
 Incident to employment 
 
 2 
 
 $5,000 00 
 
 
 
 $2 500 00 
 
 Fault not placed 
 
 3 
 
 2,194.17 
 
 $30 00 
 
 $95 00 
 
 731 39 
 
 Negligence employer 
 
 1 
 
 2,054.81 
 
 2.00 
 
 
 2 054 81 
 
 
 
 
 
 
 
 Totals 
 
 6 
 
 $9,248.98 
 
 $32.00 
 
 $95.00 
 
 $1,041.46 
 
 
 
 
 
 
 
 The Nebraska Law Needs Amending 
 
 The Nebraska compensation law does not in all cases furnish adequate 
 compensation to injured workmen or their dependents. Moreover, the pay- 
 ment of compensation, in the absence of any method of administration, 
 has been neither prompt nor certain. An unnecessarily large amount of 
 benefits both to employer and employe have been wasted. Some of the 
 hostility between employer and employe, and some of the waste and in- 
 justice that existed under the old liability system remain because too many 
 of the practices under the old system will remain so long as there is no 
 adequate method of administration. Experience in other states has shown 
 that these evils can be eliminated by an adequate compensation scale, and 
 guarantee of reasonable and well regulated relief when needed, through the 
 creation of a supervising authority with summary power in the admin- 
 istration of the law, and settlement of disputes. 
 
 Time and experience have suggested needed amendments to the Ne- 
 raska compensation law. It was not expected that the first attempt to 
 enact the principle of workmen's compensation into the statutes of Ne- 
 braska would be final and the last word in the matter, but time and ex- 
 perience and changed conditions point out the changes that are necessary 
 
WORKMEN'S COMPENSATION LAW 21 
 
 if the principle of compensation is to be fully made a part of the law 
 of the state. Without a long drawn .out discussion of the causes leading 
 up to the suggested changes, below is given reference to those that are 
 suggested by the operation of the compensation law during the first year 
 of its trial in Nebraska: 
 
 Some board or commission or individual with authority to supervise 
 and administer the law. 
 
 Reduction of the waiting period to seven days. 
 
 Raising the maximum from $10 to $12. 
 
 Adding the finger and toe schedule. 
 
 Making the law apply to employers of one or more employes instead 
 of five. 
 
 Stating more clearly the rule for lump sum settlements. 
 
 Making the law apply to members of the state militia. 
 
 Provisions that upon the application of either party -the court may 
 order and determine matters of controversy in a summary manner. 
 
 More clearly defining the provisions as to minors. 
 
 Giving the board or commission or some individual power to order 
 a lump sum settlement upon the application of either party, with right of 
 an appeal to the courts. 
 
 Some method by which there will be a larger degree of guaranteed 
 solvency of the employer or insurance company. 
 
 Requiring all settlements and releases to have the approval of some 
 board or commission' or individual. 
 
 Copies of all releases and settlements to be filed with some court or 
 office of record. 
 
 More specific and stringent state laws dealing with insurance com- 
 panies which write Nebraska business without first procuring a state 
 license. 
 
 Making more specific and certain many of the provisions of the law 
 to the end that misunderstandings and litigation may be minimized. 
 
 Graduate benefits according to number of children until a reasonable 
 maximum percentage is reached. 
 
 In case of death or permanent disability reduce the number of weekly 
 payments by increasing the per cent. 
 
 Requiring the insurance commissioner to notify the board, commission 
 or individual charged with the administration of the law, of each insur- 
 ance company licensed to write compensation insurance under the law. 
 
 Raise the percentage from 50 per cent to 66% per cent. 
 
 Making payments in case of death 66% per cent of wages for 312 
 weeks in lieu of 350 weeks. 
 
 Penalize employers who fail to provide safety devices as required by 
 the state law. 
 
 More clearly define what constitutes "lost earning power." 
 
 Penalize employers and insurance companies who fail to report all 
 accidents in detail. 
 
 Requiring elections under the law to be filed with the administrating 
 
22 STATE DEPARTMENT OF LABOR 
 
 commission, board or individual instead of with the insurance commis- 
 sioner. 
 
 Adequate appropriations by the legislature for the administration of 
 the law. 
 
 Providing specific benefits for the larger number of injuries. 
 
 Raising the minimum from $5 per week to $6 per week. 
 
 More clearly defining the waiting period. 
 
 Prohibiting deductions in lump sum settlements. 
 
 Domestic and Household Servants 
 
 Section 97 expressly provides that the Nebraska compensation act 
 shall not apply, among other classes, to: 
 
 (a) Domestic servants; 
 
 (b) Household servants. 
 
 The term "domestic servant" means one who lives and works in the 
 house and does not include a servant whose employment is out of doors 
 and not in the house. Bouvier in his law dictionary says that the term 
 "domestic" does not extend to workmen and laborers employed out of 
 doors. Another writer has said that domestic servants are those who 
 receive wages and stay in the house of the person paying and employing 
 them for their services. They are sometimes referred to as menial servants, 
 who are defined as persons retained by others to live within the walls of 
 the house and to perform the work of the household. 
 
 A household servant is a servant dwelling under the same roof and 
 under circumstances which make him a member of the family. The word 
 "household" comes from the Latin word "familia." It is generally used 
 to denote persons dwelling together and composing a family. Webster 
 defines the household as those who dwell under the same roof and con- 
 stitute a family. The status of a household servant is determined rather 
 by his relation to the family than by the character of the service which he 
 performs. If he is taken into the family and occupies a relation such 
 that he could properly be considered a member of that household, then 
 he could with propriety be considered a household servant. Private 
 chauffeurs do not occupy this close relationship with the employer. He 
 usually lives in another house than his employer; he boards at a different 
 table; his laundry is done at a public laundry, his clothes are mended at 
 a public tailor shop, and he does not sustain such close relationship with 
 the employer and his family as would make him a member of the family. 
 
 The courts have frequently decided who are and who are not employes 
 and who are "servants," and in their opinion we find such language as 
 the following: 
 
 "A servant is one who is employed to render personal service to his 
 employer, otherwise than in the pursuit of independent calling, and who 
 in such service remains entirely under the control and direction of the 
 latter, who is called his master." 
 
 "A servant is one who does work under the direction of another, 
 who not only prescribes to the workman the nature of his work, but di- 
 
WORKMEN'S COMPENSATION LAW 23 
 
 rects his time as any moment may direct, the means also, or, as it has been 
 put, retains the power of controlling the work." 
 
 "The real test of which to determine whether a person is acting 
 as servant of another is to ascertain whether, at the time the injury was 
 inflicted, he was subject to such person's order and control and so liable 
 to be discharged by him for disobedience of orders or misconduct." 
 
 "Within the ordinary acceptation of the term one who is engaged to 
 render services in a particular transaction is not an employe. The word 
 implies continued service and excludes those employed for a single trans- 
 action." 
 
 "The term 'employe' indicates persons hired to work for wages as the 
 employer may direct, and does not embrace the acts of the employment 
 of a person carrying on a distinct trade or calling to perform services 
 independent of the control of the employer." 
 
 "An employe is a person bound in some degree at least to the duties 
 of a servant and not a mere contractor bound only to produce, or cause 
 to produce a certain result." 
 
 In the case In re Caldwell, 164 Fed., 515, the court held that musicians 
 at regular wages to play in a theater or other place are "servants" within 
 the meaning of the bankruptcy act. July 1, 1898, c-541, par. 64b. "Lexi- 
 cographers define these words differently but courts have not considered 
 themselves bound by the definitions found in dictionaries and have con- 
 strued these words so as to carry into effect the intention of the law- 
 makers, and with this thought in mind it is my opinion that the members 
 of the orchestra would usually be employes within the meaning of the 
 compensation act. The contract of employment may, however, be such 
 as to change the relationship of the parties so that they would be inde- 
 pendent contractors or perhaps employes of the director of the orchestra." 
 
 A Comparison 
 
 The table below will show a comparison as to the waiting period 
 of the several compensation laws, the death benefit and the method of 
 administration. Twenty-two states have fourteen days as the waiting 
 period, while six states have seven days, one state twenty-one days, one 
 state fifteen days, one state six days, two states ten days, and two states 
 no waiting period at all. The death benefit varies from $6,100 in Pennsyl- 
 vania to $2,000 in Wyoming. The average death benefit for the twenty- 
 eight states which have fixed benefits is $3,921.27. The Louisiana law 
 provides a death benefit of 50 per cent of the wages received by the em- 
 ploye at the time of the injury resulting in death during the life of the 
 wife. Under the provisions of the Wisconsin law the widow is paid an 
 amount equal to six years' earnings of the deceased employe. Injuries 
 resulting in death are not included in the Oklahoma law. Under the fed- 
 eral law the widow receives an amount equal to one year's earnings of 
 deceased employe. Under the Oregon law the widow is paid $50 per month 
 during her life, and under the West Virginia and Washington laws the 
 widow receives $35 per month during her life. In eleven of the states 
 
24 
 
 STATE DEPARTMENT OF LABOR 
 
 the courts administer the law. In the federal law the secretary of labor 
 is the administrator and in twenty-two states the compensation law is 
 administered by commissioners. 
 
 States, Etc. 
 
 Waiting 
 Period 
 
 Death 
 ' Benefit 
 
 i Disputes 
 1 Settled By 
 
 Alaska 
 
 14 days 
 
 $6,000.00 
 
 Courts 
 
 Colorado 
 
 21 days 
 
 2,500 00 
 
 Commission 
 
 Connecticut 
 
 10 days 
 
 3,220.00 
 
 Commission 
 
 Illinois 
 
 6 days 
 
 3,500.00 
 
 Courts 
 
 Indiana . 
 
 14 days 
 
 3,700.00 
 
 Courts 
 
 Iowa 
 
 14 days 
 
 3,100.00 
 
 Commission 
 
 Kansas 
 
 14 days 
 
 3,600.00 
 
 Courts 
 
 Louisiana 
 
 14 days 
 
 50% of wages' 
 
 
 Maine 
 
 14 days 
 
 during life of 
 wife. 
 3,000.00 
 
 Courts 
 Commission 
 
 Michigan 
 
 14 days 
 
 3,000.00 
 
 Commission 
 
 Minnesota 
 
 14 days 
 
 3,400.00 
 
 Courts 
 
 Montana 
 
 14 days 
 
 4,075.00 
 
 Commission 
 
 Nebraska 
 
 14 days 
 
 3,600.00 
 
 Courts 
 
 New Hampshire 
 
 14 days 
 
 3,000.00 
 
 Courts 
 
 New Jersey 
 
 14 days 
 
 3,100.00 
 
 Courts 
 
 Pennsylvania 
 
 14 days 
 
 6,100.00 
 
 Commission 
 
 Rhode Island 
 
 14 days 
 
 3,000.00 
 
 Courts 
 
 Vermont 
 
 14 days 
 
 3,500.00 
 
 Commission 
 
 Wisconsin . . . 
 
 7 days 
 
 6 years' 
 
 
 Arizona . . .. 
 
 14 days 
 
 earnings. 
 4,000.00 
 
 Commission 
 Courts 
 
 California 
 
 14 days 
 
 5,000.00 
 
 Commission 
 
 Canal Zone 
 
 7 days 
 
 5,000.00 
 
 Governor 
 
 Hawaii 
 
 14 days 
 
 5,000.00 
 
 Commission 
 
 Maryland 
 
 14 days 
 
 4,250.00 
 
 Commission 
 
 New York 
 
 14 days 
 
 3,000.00 
 
 Commission 
 
 Oklahoma 
 
 14 days 
 
 Not 
 
 
 Federal 
 
 15 days 
 
 included. 
 1 years' 
 
 Commission 
 
 Massachusetts 
 
 14 days 
 
 earnings. 
 5,000.00 
 
 Sec. of Labor 
 Commission 
 
 Nevada ... . 
 
 7 days 
 
 6,000.00 
 
 Commission 
 
 Oregon 
 
 None 
 
 Max $50 per 
 
 
 Texas 
 
 7 days 
 
 mo. during 
 life of wife. 
 5 400 00 
 
 Commission 
 Commission 
 
 West Virginia 
 
 7 days 
 
 Max $35 per 
 
 
 Ohio 
 
 7 days 
 
 mo. during 
 life of wife. 
 3 750 00 
 
 Commission 
 Commission 
 
 ^Washington 
 
 None 
 
 Max $35 per 
 
 
 Wyoming 
 
 1 days 
 
 mo. during 
 life of wife. : 
 2 000 00 
 
 Commission 
 Courts 
 
 
 
 
 
 Classification of Accidents 
 
 The classification of accident causes are credited to the "negligence 
 of employer," "negligence of employe," "comparative negligence," "fellow 
 servant," "fault not placed," or "incident to employment." 
 
 In the very nature of things any method of classification of accident 
 causes cannot be entirely reliable. Every accident necessarily includes 
 
WORKMEN'S COMPENSATION LAW 25 
 
 more than one of these distinctions. With ordinary care, working in a 
 perfectly safe place, with perfect tools, accidents infrequently happen. 
 But ordinary care is a variable quality and is hard to design; no place 
 is securely safe and no tools are perfect. Strictly speaking there is no 
 such thing as an unavoidable accident, save and except those occurring 
 from causes outside of human activity. Lightning, flood and earthquake 
 may cause accidents, and do, but they cannot be foreseen or guarded 
 against, and are in the category of purely fortuitous events. The human 
 mind can no more escape the invasion of vagrant thoughts than it can 
 focalize on a special point in observing the sunrise. It is not, neither can 
 it jbe fixed to a certain point in any individual, for a determinate period 
 of time. A new thought comes into consciousness with every new align- 
 ment of body and brain, and this new alignment takes place every time 
 one moves. Not many accidents are caused by "want of thought," but 
 are frequently caused by too much thought. In a very large number of 
 cases accidents "just happen." Owing to the bad reputation of the ram, 
 more than ordinary care is supposed to be exercised when at or near the 
 "butting" end of that ram. But all rams do not attack. Familiarity 
 with this animal breeds carelessness. But it would be hard to say whether 
 a man who come in contact with the business end of a ram was guilty 
 of negligence or that it was a case of base betrayal of confidence. 
 
 Accidents are classified according to a reasonable interpretation of 
 the information given on the face of reports. A thorough investigation 
 by properly authorized tribunals or individuals might ascertain the facts 
 to be different from that indicated on the face of the reports. But there 
 are a large number of accidents which "just happen" it being impossible 
 to fix the blame or ascertain the cause. These are classified as "incident 
 to employment." 
 
 One result of the operation of the Nebraska compensation law has 
 been most gratifying. With hardly a single exception injured employes 
 have returned to their job as soon as repaired, that is, as soon as they 
 recovered from the injury sustained. Under the common law or em- 
 ployers' liability method of dealing with work accidents, when the ambu- 
 lance chaser's activities were unchecked, such was not the case. The 
 court records of the state will show that about 50 per cent of those who 
 suffered work accidents were induced to start a damage suit and that 
 about 10 per cent of those who sought damages finally secured an award 
 of damages after long drawn out litigation. Practically 100 per cent of 
 those who sought to recover damages for a personal injury never returned 
 to the job upon which they suffered their injury. Even though the scale 
 of compensation may be smaller in the exceptional cases than could be 
 recovered by litigation, the certainty of the payment of a fixed amount 
 without trouble or worry is surely a gratifying circumstance when the 
 employe knows and feels that he is not to lose his employment by reason 
 of the meddling of those who seek to profit by his misfortune. Many a 
 man may go to his daily toil with a lighter heart due to the knowledge 
 that if anything happens to him before the day is done, that at least 
 his loved ones will not be objects of charity. Many a sorrowing mother's 
 
26 STATE DEPARTMENT OF LABOR 
 
 bleeding heart, as she tries to comfort her fatherless children on the 
 return from the cemetery, may be solaced by the thought that at least 
 there is no fear of their going hungry. Statistics gathered by the fed- 
 eral government and the several states show that only about 10 per cent 
 of the employes who suffer work accidents have been able to recover dam- 
 ages under the common law and employers' liability statutes. In other 
 words, if an employe should suffer an injury he had only one chance 
 in ten of recovering an award at the end of litigation. Under compen- 
 sation laws the injured employe has 100 per cent of the chances to recover. 
 True, th'e amount of recovery in exceptional cases is larger, but the em- 
 ployer under the compensation law is given a certainty of recovery for 
 an uncertainty, together with loss of employment and court costs and 
 attorney fees and the almost limitless waiting period. 
 
 Totals for the Year 
 
 The following table gives the totals and averages for the year as 
 compiled from completed reports which have been filed in the department 
 of labor for the first year of the operation of the compensation law. There 
 are many cases in which settlements are pending, owing to the lack of 
 any fixed method of settlement aside from the agreement of the parties. 
 A report should be filed in the state department of labor covering all 
 accidents suffered by an employe who is under the compensation law, 
 regardless of the minor or serious nature of the accident. Blanks for 
 reporting these accidents are furnished by the department of labor upon 
 application. Also blanks are furnished to be used in making the different 
 elections provided in the law. These elections must be filed in the office 
 of the commissioner of insurance. 
 
 Total number reports filed 4,082 
 
 Total number complete reports filed 2,222 
 
 Total number non-compensation cases 1,617 
 
 Total number compensation cases 605 
 
 Total paid in compensation $24,923.62 
 
 Total paid for medical attention 24,004.83 
 
 Total paid for hospital services 772.91 
 
 Total paid for ambulance charges 13.90 
 
 Total paid for nurse hire 34.05 
 
 Total paid for medical attention in non-compensation cases 9,656.16 
 
 Total paid for hospital services in non-compensation cases 287.15 
 
 Total paid for medical attention in compensation cases 14,996.42 
 
 Total paid for hospital services in compensation cases 423.71 
 
 Total paid for ambulance charges in compensation cases 25.40 
 
 Total paid for nurse hire in compensation cases 34.05 
 
 Average paid for accidents resulting in death 1,041.46 
 
 Average medical attention cost in fatal cases 5.33 
 
 Average hospital charges in fatal cases 15.83 
 
 Average cost of medical attention in non-compensation cases 5.97 
 
WORKMEN'S COMPENSATION LAW 27 
 
 Average cost of hospital charges in non-compensation cases .17 
 
 Total number of days lost by employe in compensation cases 11,754 
 
 Average number of days lost by employe in compensation cases 19.4 
 
 Total number days lost by employe in non-compensation cases 5,060 
 Average number of days lost by employe in non-compensation 
 
 cases 3.1 
 
 Total number cases "Fault Not Placed" 468- 
 
 Total number cases "Incident to Employment" 1,454 
 
 Total number cases "Negligence Employe" 11& 
 
 Total number cases "Negligence Employer" 78 
 
 Total number cases "Fellow Servant" 91 
 
 Total number cases "Comparative Cases" '. IS 
 
WORKMEN'S COMPENSATION LAW 
 
 29 
 
 Non-Compensation Cases 
 
 Negligence of Employer 
 
 The reports of completed cases filed in the State Department of Labor 
 show that there were sixty-one cases reported in which the injury suffered 
 by the employe was through the negligence of the employer. In the sixty- 
 one cases included in the table below, the total amount paid for medical 
 attention was $345.60. There was no compensation paid in any one of the 
 sixty-one cases, for the reason that none of these injuries caused the em- 
 ploye to lose more than fourteen days; that is, the injury did not disable 
 the employe for more than fourteen calendar days in any one instance. 
 If the fault is properly placed in the sixty-one cases covered in this table, 
 the total number could have recovered under the common law for their 
 injuries. 
 
 No. Days 
 Lost Time 
 
 No. 
 
 Cases 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 i 
 
 Ambu- ' 
 lance 
 
 Nurse 
 Hire 
 
 . Average 
 Benefit 
 to 
 Employe 
 
 
 
 32 
 
 $113.25 
 
 
 
 
 $3 54 
 
 1 
 
 1 
 
 2.00 
 
 
 
 
 2 00 
 
 2 
 
 3 
 
 22.70 
 
 
 
 
 7 56 
 
 3 
 
 4 
 
 31.00 
 
 
 
 
 7 75 
 
 4 
 
 2 
 
 8.00 
 
 
 
 
 4 00 
 
 5 
 
 2 
 
 8.00 
 
 
 
 
 4 00 
 
 6 
 
 2 
 
 20.00 
 
 
 
 
 10 00 
 
 7 
 
 1 
 
 4.00 
 
 
 
 
 4.00 
 
 8 
 
 2 
 
 12.00 
 
 
 
 
 6 00 
 
 9 
 
 1 
 
 2.00 
 
 
 
 
 2.00 
 
 11 
 
 3 
 
 35 50 
 
 
 
 
 11 83 
 
 12 
 
 1 
 
 3.50 
 
 
 
 
 3 50 
 
 13 
 
 2 
 
 14 15 
 
 
 
 
 7 07 
 
 Not stated. 
 
 3 
 
 56.50 
 
 
 
 
 18.83 
 
 Less than 14 
 
 2 
 
 13.00 
 
 
 
 
 6.50 
 
 
 
 
 
 
 
 
 Total 
 
 61 
 
 $345.60 
 
 
 
 
 
 
 
 
 
 
 
 
 Negligence of Employe 
 
 The table below shows that eighty cases were reported to the Depart- 
 ment of Labor, in which the fault, as indicated by the reports, was the 
 negligence of the employe. In the eighty cases $609.30 was paid for med- 
 ical attention, and $21 for hospital services. It will be noted that there 
 are five cases included in the table below in which the disability lasted 
 more than fourteen calendar days, and the injured employe should have 
 been compensated, in these five cases, for all of the lost time in excess of 
 
30 
 
 STATE DEPARTMENT OF LABOR 
 
 the fourteen calendar days. There was no compensation paid in any one- 
 of the eighty cases included in the table. 
 
 No. Days 
 Lost Time 
 
 No. 
 
 Cases 
 
 Medical 
 Atten- 
 i tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 i 
 
 Nurse 
 Hire 
 
 I 
 
 Average 
 Benefit 
 to 
 Employe 
 
 
 
 37 
 
 $260.50 
 
 
 
 
 $7 04 
 
 1 
 
 2 
 
 6.00 
 
 
 
 
 3 00 
 
 2 
 
 2 
 
 15.00 
 
 . 
 
 
 . 
 
 7 50 
 
 3 
 
 2 
 
 10.00 
 
 
 
 
 5 00 
 
 4 
 
 2 
 
 8.50 
 
 
 
 
 4 25 
 
 5 
 
 5 
 
 29.00 
 
 
 
 
 5 80 
 
 6 
 
 6 
 
 2.00 
 
 
 
 
 33 
 
 7 
 
 3 
 
 22 00 
 
 
 
 
 7 33 
 
 8 
 
 4 
 
 16.00 
 
 $ 1.00 
 
 
 
 4 25 
 
 9 
 
 2 
 
 19.00 
 
 10.00 
 
 
 
 14 50 
 
 10 
 
 1 
 
 8.00 
 
 
 
 
 8.00 
 
 11 
 
 2 
 
 16.80 
 
 
 
 
 8.40 
 
 12 
 
 1 
 
 8.00 
 
 
 
 
 8.00 
 
 13 
 
 1 
 
 21.00 
 
 10.00 
 
 
 
 31.00 
 
 15 
 
 1 
 
 10 00 
 
 
 
 
 10 00 
 
 16 
 
 1 
 
 5.00 
 
 
 
 
 5.00 
 
 20 
 
 1 
 
 17 50 
 
 
 
 
 17.00 
 
 22 
 
 1 
 
 
 
 
 
 
 24 
 
 1 
 
 
 
 
 
 
 Not given. . .. 
 
 3 
 
 110.00 
 
 
 
 
 36.66 
 
 Less than 14 
 
 2 
 
 25 00 
 
 
 
 
 12.50 
 
 
 
 
 
 
 
 
 Total.... 
 
 80 
 
 $609.30 
 
 $21.00 
 
 
 
 
 Fellow Servant 
 
 There were fifty-nine cases reported to the Department of Labor in 
 which no compensation was paid by reason of the fourteen calendar day 
 limitation, in which the fault or cause of the injury suffered by the em- 
 ploye was indicated, by the reports, to have been the act of a fellow 
 servant. The total cost of medical attention for the fifty-nine cases was 
 $379.65. It will be noted that twenty-three of the fifty-nine cases included 
 in the table below, or over 45 per cent, show no lost time. 
 
 No. Days 
 Lost Time 
 
 No. 
 
 i Cases 
 
 Medical 
 1 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- ! 
 lance 
 
 Nurse | 
 Hire 
 
 ! ; 
 
 Average 
 Benefit 
 to 
 Employe 
 
 
 
 23 
 
 $84.50 
 
 
 
 i 
 
 $3 67 
 
 1 
 
 2 
 
 4.00 
 
 
 
 
 2.00 
 
 2 
 
 4 
 
 13.00 
 
 
 
 
 325 
 
 4 
 
 4 
 
 44.00 
 
 
 
 
 11.00 
 
 5 
 
 2 
 
 5.50 
 
 
 
 
 2 25 
 
 6 
 
 1 
 
 9.00 
 
 
 
 
 9.00 
 
 7 
 
 5 
 
 64.25 
 
 
 
 
 12.85 
 
 8 
 
 2 
 
 12.40 
 
 
 
 
 6.20 
 
 9 
 
 2 
 
 46.00 
 
 
 
 
 23.00 
 
 10 
 
 7 
 
 7 00 
 
 
 
 
 7.00 
 
 11 
 
 2 
 
 17.00 
 
 
 
 
 8.50 
 
 14 
 
 2 
 
 17.00 
 
 
 
 
 8.50 
 
 Not given 
 
 2 
 
 46.00 
 
 
 
 
 23.00 
 
 Less than 14 
 
 1 
 
 10.00 
 
 
 
 
 10.00 
 
 
 
 
 
 
 
 
 Total.... 
 
 59 
 
 $379.65 
 
 
 
 
 
WORKMEN'S COMPENSATION LAW 
 
 31 
 
 Comparative Negligence 
 
 The table below shows thirteen cases in which there was no compen- 
 sation paid to the injured employe, and in which on the face of the reports 
 filed, the fault was practically evenly divided between employer and em- 
 ploye. In the thirteen cases covered, $59 for medical attention and $5.80 
 for hospital services were paid. It will be noted that there were two 
 cases in which the disability lasted one day each more than the fourteen 
 calendar days, and that each injured employe should have been compensated 
 50 per cent of the lost earning power for the one day. 
 
 No. Days 
 Lost Time 
 
 No. ] 
 Cases 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- ! 
 lance 
 
 i Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 
 
 6 1 
 
 $9.00 
 
 
 
 
 $1 50 
 
 2 
 
 1 
 
 2.00 
 
 
 
 
 2 00 
 
 4 
 
 1 
 
 10.00 
 
 
 
 
 10 00 
 
 5 
 
 1 
 
 5.00 
 
 
 
 
 5 00 
 
 8 
 
 1 
 
 8.00 
 
 
 
 
 8.00 
 
 11 
 
 1 
 
 5.00 
 
 
 
 
 5 00 
 
 15 
 
 2 
 
 20.00 
 
 5.80 
 
 
 
 12.90 
 
 
 
 
 
 
 
 
 Total 
 
 13 
 
 $59.00 
 
 $5.80 
 
 
 
 
 
 
 
 
 
 
 
 Fault Not Placed 
 
 There were 313 reports filed of completed cases in which there was 
 no compensation paid the injured employe by reason of the disability not 
 continuing more than fourteen calendar days. In tabulating these cases 
 under the heading "Fault Not Placed" the department adhered to the rule 
 that in all cases where the face of the report did not show the cause of 
 the injury that it was impossible to place the blame or the cause of the 
 injury, and could only be listed in the very indefinite column of "fault 
 not placed." The 313 cases in this table called for the payment of $2,367.81 
 for medical attention and $72.85 for hospital services. In the column giv- 
 ing the number of days of disability it will be noted that there were 
 twelve cases in which the disability lasted more than fourteen calendar 
 days. In each case in which the disability lasted more than fourteen 
 calendar days the injured employe should have been compensated for each 
 working day in excess of the fourteen calendar days. The figures in this 
 table show that twelve injured employes who were entitled to the compensa- 
 tion for which the employer had paid failed to receive such compensation. 
 
32 
 
 STATE DEPARTMENT OF LABOR 
 
 Some board or individual clothed with power to apply and alminister the 
 law is needed if the condition here set forth is not to continue. 
 
 No. Days 
 Lost Time 
 
 No. 
 
 Cases 
 
 Medical 
 
 i Atten- ; 
 1 tion 
 
 Hospital 
 
 Services 
 
 i 
 
 Ambu- ! 
 lance 
 
 Nurse 
 Hire 
 
 I 
 
 Average 
 Benefit 
 to 
 Employe 
 
 
 
 148 
 
 $812.20 
 
 $7.00 
 
 
 
 $5.53 
 
 1 
 
 8 
 
 28.00 
 
 
 
 
 3 50 
 
 2 
 
 17 
 
 94 50 
 
 
 
 
 5 55 
 
 3 
 
 12 
 
 54.45 
 
 
 
 
 4.53 
 
 4 
 
 8 
 
 27 00 
 
 
 
 
 3 37 
 
 5 
 
 14 
 
 67.00 
 
 
 
 
 4.78 
 
 6 
 
 8 
 
 61 50 
 
 
 
 
 7 68 
 
 7 
 
 11 
 
 105.00 
 
 
 
 
 9.54 
 
 8 
 
 19 
 
 134 00 
 
 
 
 
 7 05 
 
 9 
 
 6 
 
 53.65 
 
 
 
 
 8.94 
 
 10 
 
 8 
 
 41.00 
 
 
 
 
 5.12 
 
 11 
 
 6 
 
 61.75 
 
 
 
 
 10.29 
 
 12 
 
 10 
 
 100.00 
 
 
 
 
 10.00 
 
 13 
 
 1 
 
 9 00 
 
 
 
 
 9 00 
 
 14 
 
 4 
 
 64.00 
 
 
 
 
 16.00 
 
 15 
 
 4 
 
 70.00 
 
 
 
 
 17.50 
 
 16 
 
 3 
 
 28.00 
 
 1.35 
 
 
 
 9 78 
 
 17 
 
 1 
 
 19.00 
 
 
 
 
 19.00 
 
 18 
 
 2 
 
 16.00 
 
 
 
 
 8.00 
 
 20 
 
 1 
 
 5.00 
 
 
 
 
 5.00 
 
 24 
 
 1 
 
 5.00 
 
 
 
 
 5.00 
 
 Not given 
 
 16 
 
 1 492.76 
 
 64.50 
 
 
 
 34.83 
 
 Less than 14 
 
 5 
 
 1 19.00 
 
 
 
 
 3.80 
 
 
 
 
 
 
 
 
 TotaL- 
 
 313 
 
 $2,367.81 
 
 $72.85 
 
 
 
 
 Incident to Employment 
 
 Reports were filed showing the settlement of 1,091 cases in which 
 the fault was not placed, and so far as the information given in the re- 
 port, would indicate that the injury was incident to employment; that is, 
 that each injury was simply one of those injuries which must happen 
 in the every day activities of life. There was no compensation paid in 
 any one of the 1,091 cases included in the table below. It will be noted 
 that there were thirty-one cases in which the period of disability exceeded 
 fourteen calendar days, and for which compensation should have been paid 
 to the injured employe. If there was some method of administration of 
 the Nebraska Compensation Law, these thirty-one injured employes would 
 have had a chance, at least, of receiving the compensation to which they 
 
WORKMEN'S COMPENSATION LAW 
 
 33 
 
 were entitled, and in most cases, paid for in insurance premiums by their 
 employers. There was paid for medical attention $5,894.80, and $187.50 
 for hospital services. 
 
 No. Days 
 Lost Time 
 
 No. 
 
 Cases 
 
 Medical 
 
 Atten- , 
 tion 
 
 Hospital 
 Services 
 
 i Ambu- ' 
 1 lance 
 
 1 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 
 
 513 
 
 $2,285.45 
 
 $63.50 
 
 
 
 $4 58 
 
 1 
 
 78 
 
 266.95 
 
 
 
 
 3 42 
 
 2 
 
 42 
 
 174.60 
 
 .. . 3.00 
 
 
 
 4 22 
 
 3 
 
 64 
 
 271.10 
 
 13.50 
 
 
 
 4 44 
 
 4 
 
 57 
 
 257.50 
 
 
 
 
 4 53 
 
 5 
 
 40 
 
 236.14 
 
 
 
 
 5 90 
 
 6 
 
 40 
 
 243.20 
 
 
 
 
 6 08 
 
 7 
 
 32 
 
 240.85 
 
 
 
 
 7 52 
 
 8 
 
 29 
 
 197.85 
 
 7.50 
 
 
 
 7 08 
 
 9 
 
 25 
 
 176.10 
 
 3.00 
 
 
 
 6 76 
 
 10 
 
 27 
 
 200.40 
 
 6.00 
 
 
 
 7 64 
 
 11 
 
 18 
 
 112.50 
 
 
 
 
 6 25 
 
 12 
 
 11 
 
 99.75 
 
 
 
 
 9 07 
 
 13 
 
 16 
 
 161.00 
 
 16.00 
 
 
 
 11 06 
 
 14 
 
 16 
 
 188.60 
 
 
 
 
 11 78 
 
 15 
 
 14 
 
 151.60 
 
 18.00 
 
 
 
 12 11 
 
 16 
 
 9 
 
 66.00 
 
 
 
 
 7 33 
 
 18 
 
 3 
 
 122.00 
 
 16.00 
 
 
 
 46 00 
 
 19 
 
 1 
 
 6.66 
 
 23.00 
 
 
 
 29.66 
 
 20 
 
 2 
 
 22.00 
 
 
 
 
 11 00 
 
 21 
 
 1 
 
 5.00 
 
 13.00 
 
 
 
 18.00 
 
 37 
 
 1 
 
 11.00 
 
 
 
 
 11 00 
 
 Not given 
 
 24 
 
 212.50 
 
 
 
 
 8.85 
 
 Less than 14 
 
 28 
 
 186.05 
 
 5.00 
 
 
 
 6.82 
 
 
 
 
 
 
 
 
 Total.... 
 
 1.091 
 
 $5.894.80 
 
 $187.50 
 
 
 
 
 Elections 
 
 The provisions of the compensation law apply to the state of Nebraska 
 and every governmental agency created by it, and every employer in the 
 state employing five or more employes, in the regular trade, business, 
 profession or vocation of such employer. Household servants and farm 
 laborers are declared not to be engaged in hazardous occupations and are 
 not under the provisions of the law. Railroad employes engaged in inter- 
 state or foreign commerce are declared to be under the powers of congress. 
 Every employer and employe as enumerated above are presumed to be 
 under the law unless the employer or employe file an election to the con- 
 trary with the commissioner of insurance. 
 
 Employers and employes not included in the above may file a joint 
 election with the insurance commissioner and accept the provisions of the 
 compensation law. 
 
 The following rejections (46), withdrawals of rejections (9) and joint 
 elections (87) have been filed in the office of the commissioner of insurance: 
 
34 
 
 STATE DEPARTMENT OF LABOR 
 
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WORKMEN'S COMPENSATION LAW 
 
 35 
 
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WORKMEN'S COMPENSATION LAW 
 
 
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WORKMEN'S COMPENSATION LAW 39 
 
 Compensation Awards 
 
 Under the provisions of the Nebraska statutes as they existed be- 
 fore the adoption of the compensation law, and the defenses under the 
 common law, employes injured in the course of employment could only 
 recover an award of damages for the injury where the fault or negli- 
 gence was that of the employer. 
 
 The briefest statement of the common law rule governing the em- 
 ployer is that he is required to use due care for the safety of his em- 
 ployes while they are engaged in the performance of their work. This is 
 taken to include all reasonable means and precautions, the facts in each 
 particular case being taken into consideration. If such provisions have 
 been made as a reasonably prudent man would supply if he himself were 
 exposed to the dangers of the servant's position, no negligence would 
 appear. In the case of corporations supreme courts fix the duty at the use 
 of such caution and foresight as a corporation controlled by careful, prudent 
 officers ought to exercise. Though the courts have not sanctioned the 
 rule that would tend to charge the employer with a higher degree of 
 care than that which may be defined as ordinary, the measure is not an 
 absolute one, but is proportioned to the dangers to which the employe 
 is exposed. The ordinary incidents of railroading, mining and certain 
 classes of manufacturing are in themselves, in comparison with general 
 employments, unusually dangerous; and so of a large railroad as com- 
 pared with a smaller one, an express train as compared with a freight 
 train, or a gaseous mine with one in which no such dangers exist. In 
 such cases as these, or when temporarily abnormal conditions prevail, 
 ordinary care is advanced far beyond the requirements of the less danger- 
 ous conditions. On the other hand, care may lawfully be relaxed if the 
 risk is unusually slight or if a device is for a specific and transitory 
 use. Practically the rule of the common law can be stated as being that 
 an employer can not be required to respond in damages unless fault can 
 be traced to him, or that he was negligent and failed to exercise ordinary 
 care. 
 
 The Nebraska compensation law substitutes for the common law 
 rule and statutory provisions the rule that the employer must respond 
 in damages regardless /)f fault, unless it be shown that the employe wil- 
 fully produced the injury. This substitution is based on the theory that 
 occupational injuries should be a charge against the business operated 
 by the employer. 
 
 Applying the rule of the common law, only those accidents which 
 are the result of the fault or negligence of the employer can the em- 
 ployer be required to respond in damages. Reports filed under the com- 
 pensation law show that out of the total number of cases reported compen- 
 sation was paid in a total of 605. Only seventeen of these reports show 
 that the employer had been negligent. Under a normal application of the 
 common law rule only 29 per cent of the 605 employes who suffered an 
 injury and received compensation could have recovered. Thus the differ- 
 
40 
 
 STATE DEPARTMENT OF LABOR 
 
 ence between 100 per cent and 29 per cent, or 71 per cent, received an 
 award by reason of the provisions of the compensation law. 
 
 In the reports of 605 completed cases in which compensation was 
 paid are included 17 cases in which the fault on the face of -the reports 
 was clearly placed on the employer, while there were 155 cases which the 
 reports failed to indicate from the statements of the cause of the injury 
 sufficint information to place the fault, so these 155 cases have been 
 listed under "fault not placed." Thirty-eight accidents for which com- 
 pensation was paid were plainly the fault of the injured employe; thirty- 
 two the fault of a fellow servant, and 363 which from the face of the 
 reports seemed to be those sort of accidents which simply happen unex- 
 plainable and the fault of neither employe, employer or a fellow servant. 
 
 Summing up the information contained in the tables following, which 
 cover a total of 605 completed cases reported, 71 per cent of the total 
 number received money settlements for injuries simply by reason of the 
 provisions of the compensation law, whereas if the rules of the common 
 law had prevailed only 29 per cent of the total number could have re- 
 covered a money settlement. 
 
 Compensation Cases 
 
 The following tables show the number of completed reports of cases 
 which have been reported to the state department of labor in which com- 
 pensation has been paid. These cases are classified as to fault from the 
 information contained in the report of the accident. There is a total 
 of 605 cases covered in these tables. The total number of days lost 
 time is 20,705, with a total of 36 cases in which the lost time was not 
 stated. The total paid to injured employes in the 605 cases was $40,403.20, 
 making an average payment of $66.78 for the total number of cases. 
 The average payment for each day of lost time, not including the 36 
 cases in which the lost time was not stated, would be $1.95+ per day. 
 The average paid for medical attention is $24.78. The average paid in 
 compensation, exclusive of medical attention, hospital services, ambulance 
 charges and nurse hire, is $43.59. 
 
 Negligence of Employer 
 
 No. 
 
 Days 
 
 No. 
 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 21 
 
 2 
 
 $14.56 
 
 $24.00 
 
 
 
 
 $19 28 
 
 28. . 
 
 2 
 
 22.70 
 
 32.00 
 
 
 
 
 27.35 
 
 29 
 
 3 
 
 34.50 
 
 23.00 
 
 
 
 
 19 18 
 
 32. ., 
 
 1 
 
 13.00 
 
 8.00 
 
 
 
 
 21.00 
 
 39 
 
 1 
 
 16.67 
 
 39.25 
 
 
 
 
 55 92 
 
 47. .. 
 
 1 
 
 28.00 
 
 25.00 
 
 
 
 
 53.00 
 
 60 
 
 1 
 
 120.00 
 
 27.00 
 
 
 
 
 147 00 
 
 67 
 
 1 
 
 82 50 
 
 39.00 
 
 
 
 
 121 50 
 
 93 
 
 1 
 
 80.00 
 
 27.00 
 
 
 
 
 107 00 
 
 105 
 
 1 
 
 62.50 
 
 27.50 
 
 
 
 
 90 00 
 
 115 
 
 1 
 
 115.50 
 
 97.50 
 
 
 
 
 213.00 
 
 131 
 
 1 
 
 139.00 
 
 84.50 
 
 
 
 
 1 223 50 
 
 225 .. 
 
 1 
 
 442.00 
 
 143.00 
 
 
 
 i 
 
 585.00 
 
 
 
 
 
 
 
 
 
 
 Totals 
 
 1 17 1 
 
 $1,170.93 
 
 1 $596.75 
 
 
 
 
 
 i 
 
 
WORKMEN'S COMPENSATION LAW 
 
 41 
 
 Fault Not Placed 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 1 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 1 
 
 1 
 
 $ 1.33 
 
 $ 2.50 
 
 
 
 
 $ 3 83 
 
 2 
 
 2 
 
 5.45 
 
 1.00 
 
 
 
 
 3 22 
 
 3 
 
 2 
 
 46.80 
 
 18.50 
 
 
 
 
 32 65 
 
 4 
 
 3 
 
 12.00 
 
 20.50 
 
 
 
 
 10 83 
 
 5 
 
 1 
 
 194.00 
 
 3.00 
 
 
 
 
 197 00 
 
 6 
 
 3 
 
 57.20 
 
 49.13 
 
 
 
 
 35 44 
 
 7 
 
 2 
 
 28.50 
 
 26.50 
 
 
 
 
 27 50 
 
 g 
 
 2 
 
 23.50 
 
 15.00 
 
 
 
 
 19.25 
 
 9 
 
 1 
 
 9.64 
 
 4.00 
 
 
 
 
 13 64 
 
 10 
 
 1 
 
 25.40 
 
 5.00 
 
 
 
 
 30.40 
 
 14. 
 
 1 
 
 27.50 
 
 26.30 
 
 
 
 
 53 80 
 
 15 
 
 1 
 
 36.00 
 
 51.00 
 
 
 
 
 87.00 
 
 16. .. 
 
 2 
 
 33.38 
 
 14.00 
 
 
 
 
 28 69 
 
 17 
 
 4 
 
 5.07 
 
 56.00 
 
 
 
 
 15.26 
 
 18. ... 
 
 4 
 
 12.33 
 
 28.25 
 
 
 
 
 10 14 
 
 19 
 
 3 
 
 15.60 
 
 8.75 
 
 $ 1.50 
 
 
 
 8 61 
 
 20 
 
 1 
 
 5.70 
 
 14.50 
 
 
 
 
 20.20 
 
 21 
 
 2 
 
 9.30 
 
 35.90 
 
 
 
 
 22 60 
 
 22 
 
 7 
 
 66.63 
 
 184.47 
 
 4.00 
 
 
 
 36.44 
 
 23.. . 
 
 2 
 
 11.62 
 
 13.00 
 
 
 
 
 12 31 
 
 24 
 
 5 
 
 53.75 
 
 24.00 
 
 
 
 
 15.55 
 
 25 
 
 3 
 
 59.56 
 
 25 50 
 
 
 
 
 28 35 
 
 26 
 
 4 
 
 o o on 
 
 44 50 
 
 
 
 
 20 69 
 
 27 
 
 4 
 
 137.50 
 
 98.25 
 
 
 
 
 58.93 
 
 28 .. 
 
 4 
 
 70.40 
 
 199.00 
 
 
 
 
 67.35 
 
 29 
 
 1 
 
 10.00 
 
 
 
 
 
 10.00 
 
 30 .. 
 
 3 
 
 37.30 
 
 24.00 
 
 
 
 
 20.43 
 
 31 
 
 5 
 
 81.07 
 
 72.00 
 
 1.50 
 
 
 
 30.91 
 
 32 
 
 1 
 
 15.50 
 
 
 
 
 
 15.50 
 
 34 
 
 3 
 
 110.60 
 
 96.15 
 
 
 
 
 68.91 
 
 35 
 
 3 
 
 56.25 
 
 38.00 
 
 
 
 
 31.41 
 
 36 
 
 1 
 
 18.00 
 
 8.00 
 
 
 
 
 26.00 
 
 37 
 
 4 
 
 103.78 
 
 83 50 
 
 
 
 
 46.82 
 
 38 
 
 3 
 
 55.80 
 
 103.75 
 
 
 
 
 53.69 
 
 40. . 
 
 2 
 
 49.80 
 
 148 00 
 
 
 
 
 98.90 
 
 41 
 
 1 
 
 20.00 
 
 30.00 
 
 
 
 
 50.00 
 
 42 
 
 1 
 
 40 00 
 
 5.00 
 
 
 
 
 45.00 
 
 43 
 
 2 
 
 44.16 
 
 35.65 
 
 
 
 
 39.90 
 
 45 
 
 4 
 
 77.16 
 
 60.25 
 
 
 
 
 34.37 
 
 49. .. 
 
 2 
 
 67.00 
 
 125.50 
 
 
 
 
 96.25 
 
 50 
 
 1 
 
 29.20 
 
 25.00 
 
 
 
 
 54.20 
 
 53 
 
 1 
 
 32.00 
 
 10.00 
 
 
 
 
 42.00 
 
 56 
 
 4 
 
 223 29 
 
 131.50 
 
 7 00 
 
 
 
 90.44 
 
 57 
 
 3 
 
 184.00 
 
 38.00 
 
 
 
 
 222.00 
 
 58.... 
 
 2 
 
 107.62 
 
 121.00 
 
 
 
 
 114.31 
 
42 
 
 STATE DEPARTMENT OF LABOR 
 
 Fault Not Placed (Continued) 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 
 Benefit 
 to 
 Employe 
 
 59. . 
 
 2 ' 
 
 $98.13 
 
 $17.00 
 
 
 
 
 $57.56 
 
 61 
 
 1 \ 
 
 88.30 
 
 32.50 
 
 
 
 
 120 80 
 
 62 
 
 2 
 
 132 86 
 
 86 15 
 
 
 
 
 109 50 
 
 64 
 
 2 
 
 90.31 
 
 84.25 
 
 
 
 
 87 28 
 
 65 
 
 1 
 
 50 00 
 
 4 50 
 
 
 
 
 54 50 
 
 70 
 
 1 
 
 80.00 
 
 35.50 
 
 
 
 
 115 50 
 
 84 
 
 1 
 
 69 96 
 
 65 00 
 
 $28 00 
 
 
 
 162 96 
 
 87 
 
 2 
 
 169.87 
 
 200.00 
 
 
 
 
 184 93 
 
 90 
 
 1 
 
 65.63 
 
 30.00 
 
 
 
 
 95.63 
 
 92 
 
 1 
 
 65.00 
 
 27.00 
 
 
 
 
 92 00 
 
 96 
 
 1 
 
 66.77 
 
 35.00 
 
 1.50 
 
 
 
 103.27 
 
 101 
 
 1 
 
 52.50 
 
 10.00 
 
 
 
 
 62 50 
 
 108 
 
 1 
 
 93.75 
 
 25.00 
 
 
 
 
 118.75 
 
 141 
 
 1 
 
 196.00 
 
 5.00 
 
 
 
 
 201 00 
 
 148 
 
 1 
 
 201.20 
 
 155.00 
 
 30.70 
 
 
 
 386.90 
 
 152 
 
 1 
 
 65.00 
 
 85.68 
 
 
 
 
 150 68 
 
 161 
 
 1 
 
 172.50 
 
 73.00 
 
 35.00 
 
 
 
 280.50 
 
 243 
 
 1 
 
 191.00 
 
 156.50 
 
 
 
 
 347 50 
 
 263 
 
 1 
 
 355.01 
 
 26.50 
 
 
 
 
 381.51 
 
 Not 
 given.. 
 
 19 
 
 3,896.92 
 
 474.60 
 
 5.00 
 
 
 
 230.34 
 
 
 
 
 
 
 
 
 
 Totals 1 
 
 155 
 
 $8,549.69 
 
 $3,752.03 
 
 $115.70 
 
 
 
 
WORKMEN'S COMPENSATION LAW 
 
 43 
 
 Xegligence of Employe 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 3 
 
 1 
 
 $ 6.00 
 
 $ 6.00 
 
 
 
 
 $12.00 
 
 4.. .. 
 
 2 
 
 8.18 
 
 
 
 
 
 4.09 
 
 6 
 
 1 
 
 15.20 
 
 2.00 
 
 
 
 
 17.20 
 
 7. .. 
 
 1 
 
 7.74 
 
 8.00 
 
 
 
 
 15.74 
 
 11 
 
 1 
 
 9.40 
 
 5.00 
 
 
 
 
 14.40 
 
 13. 
 
 1 
 
 12.20 
 
 
 
 
 
 12.20 
 
 15 
 
 1 
 
 38.40 
 
 15.70 
 
 
 
 
 54.10 
 
 17 
 
 2 
 
 37.50 
 
 36 00 
 
 $11 70 
 
 
 
 42 60 
 
 18 
 
 1 
 
 4.00 
 
 8.00 
 
 
 
 
 12.00 
 
 19 
 
 3 
 
 58.41 
 
 57 00 
 
 
 
 
 38 47 
 
 22 
 
 2 
 
 29.92 
 
 35.50 
 
 
 
 
 32.71 
 
 23 
 
 1 
 
 9 00 
 
 25 50 
 
 
 
 
 34 50 
 
 25.... 
 
 2 
 
 13.35 
 
 
 
 
 
 6.67 
 
 26 
 
 1 
 
 9 13 
 
 17 00 
 
 
 
 
 26 13 
 
 28 
 
 1 
 
 10.00 
 
 
 
 
 
 10.00 
 
 29 
 
 1 
 
 8.00 
 
 19.00 
 
 
 
 
 27.00 
 
 33.. . 
 
 2 
 
 37.31 
 
 20.00 
 
 
 
 
 28.65 
 
 36 
 
 1 
 
 114.13 
 
 41.00 
 
 
 
 
 155.13 
 
 37. . 
 
 1 
 
 15.84 
 
 2.00 
 
 
 
 
 17.84 
 
 53 
 
 1 
 
 16.00 
 
 7.50 
 
 
 
 
 23.50 
 
 57 
 
 1 
 
 50.00 
 
 117.00 
 
 
 
 
 167.00 
 
 66 
 
 1 
 
 50 00 
 
 25 00 
 
 
 
 
 75 00 
 
 74. . .. 
 
 1 
 
 53.33 
 
 53.00 
 
 
 
 
 106.33 
 
 92 
 94 
 
 1 
 1 
 
 78.00 
 81.07 
 
 191.00 
 
 
 
 $ 7.00 
 
 
 
 276.00 
 81.07 
 
 99 
 
 1 
 
 83 00 
 
 31 00 
 
 
 
 
 114 00 
 
 111 
 
 1 
 
 84.00 
 
 198.00 
 
 2.00 
 
 
 
 284.00 
 
 Not 
 given- 
 
 4 
 
 1,149.50 
 
 173.15 
 
 31.16 
 
 2.50 
 
 
 338.99 
 
 
 
 
 
 
 
 
 
 Totals 
 
 38 
 
 $2.088.61 
 
 $1.093.35 
 
 $44.86 
 
 $ 9.50 
 
 
 
44 
 
 STATE DEPARTMENT OF LABOR 
 
 Fellow Servant 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 3.... 
 
 1 
 
 $ 4.70 
 
 $ 5.28 
 
 
 
 
 $ 9 98 
 
 7 
 
 1 
 
 lO.OOj 
 
 10.65 
 
 
 
 
 20.65 
 
 10 
 
 1 
 
 6.19 
 
 4.50 
 
 
 
 
 10 69 
 
 11 
 
 1 
 
 50.00 
 
 5.00 
 
 
 
 
 55 oo 
 
 15 
 
 2 
 
 61.34 
 
 19.00 
 
 
 
 
 40 17 
 
 18 
 
 4 
 
 39.97i 
 
 63.50 
 
 $12.00 
 
 
 
 115.47 
 
 19 
 
 1 
 
 5 50 
 
 
 
 
 
 5 50 
 
 21 
 
 1 
 
 5.00 
 
 
 
 
 
 5 00 
 
 22 
 
 1 
 
 27 21 
 
 15 00 
 
 
 
 
 42 21 
 
 23 
 
 1 
 
 10.00 
 
 10.60 
 
 
 
 
 20 60 
 
 25 
 
 1 
 
 10 50 
 
 23 00 
 
 
 
 
 33 50 
 
 29.. 
 
 1 
 
 10.00 
 
 3.00 
 
 2.00 
 
 
 
 15 00 
 
 30 
 
 1 
 
 11.92 
 
 4.00 
 
 
 
 
 15 92 
 
 31 
 
 2 
 
 31.65 
 
 25.00 
 
 
 
 
 28 32 
 
 32 
 
 1 
 
 15.00 
 
 10.00 
 
 
 
 
 25 00 
 
 35 
 
 1 
 
 15.75 
 
 49.00 
 
 
 
 
 64 75 
 
 36 
 
 1 
 
 24.39 
 
 12.00 
 
 
 
 
 36 39 
 
 37 
 
 1 
 
 19.23 
 
 20.00 
 
 
 
 
 39 23 
 
 40 
 
 1 
 
 94.17 
 
 52.50 
 
 23.00 
 
 
 
 169.67 
 
 42 
 
 1 
 
 23.00 
 
 16.00 
 
 
 
 
 39 00 
 
 58 
 
 1 
 
 54.96 
 
 40.00 
 
 
 
 
 94 96 
 
 61 
 
 1 
 
 53.00 
 
 32.00 
 
 
 
 
 85 00 
 
 63 
 
 1 
 
 90.00 
 
 29 00 
 
 
 
 
 119 00 
 
 64 
 
 1 
 
 45.71 
 
 15.00 
 
 
 
 
 60 71 
 
 69 .. 
 
 1 
 
 11.40 
 
 26.50 
 
 
 
 
 37 90 
 
 105 
 
 1 
 
 83.25 
 
 179.35 
 
 
 
 
 262 60 
 
 177 
 
 1 
 
 132.13 
 
 30 00 
 
 
 
 
 162 13 
 
 
 
 
 
 
 
 
 
 Totals 
 
 32 
 
 $945.97 
 
 $699.88 
 
 $37.00 
 
 
 
 
WORKMEN'S COMPENSATION LAW 
 
 45 
 
 Incident to Employment 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 Atten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 1 
 
 1 
 
 $ 2.00 
 
 $ 2.00 
 
 
 
 
 $ 4 00 
 
 2 
 
 5 
 
 28 80 
 
 7 97 
 
 
 
 
 7 35 
 
 3. . 
 
 8 
 
 128.27 
 
 24.00 
 
 
 
 
 19 03 
 
 4 
 
 6 
 
 48 48 
 
 33.70 
 
 
 
 
 13 69 
 
 5.. .. 
 
 6 
 
 52.50 
 
 28.00 
 
 
 
 
 13.41 
 
 6 
 
 7 
 
 107 89 
 
 31.20 
 
 
 
 
 19 87 
 
 7 
 
 4 
 
 59.35 
 
 12.00 
 
 
 
 
 17.83 
 
 8 
 
 4 
 
 50.25 
 
 134.75 
 
 
 
 
 46 25 
 
 9 
 
 6 
 
 88.15 
 
 64.02 
 
 
 
 
 25.36 
 
 10 
 
 9 
 
 181.95 
 
 115.24 
 
 
 
 
 32 79 
 
 11 
 
 6 
 
 104 92 
 
 83.75 
 
 
 
 
 31 44 
 
 12 
 
 4 
 
 92.65 
 
 103.00 
 
 
 $ 2.90 
 
 
 49.61 
 
 13 
 
 ' 2 
 
 50.32 
 
 16 00 
 
 
 
 
 33 16 
 
 14 
 
 1 
 
 14.00 
 
 9.00 
 
 
 
 
 23.00 
 
 15 
 
 7 
 
 77 81 
 
 73 10 
 
 
 
 
 21 55 
 
 16 .. 
 
 4 
 
 34.82 
 
 54.95 
 
 $ .75 
 
 
 
 22 65 
 
 17 
 
 11 
 
 103.75 
 
 160.50 
 
 5 00 
 
 
 
 24 02" 
 
 18 
 
 13 
 
 48.57 
 
 113.50 
 
 20.00 
 
 
 
 14. Oft 
 
 19 
 
 5 
 
 65 03 
 
 66.45 
 
 
 
 
 24 29' 
 
 20 
 
 13 
 
 139.93 
 
 120.20 
 
 
 
 
 20.01 
 
 21 
 
 8 
 
 57.19 
 
 88.70 
 
 
 
 
 18 2 
 
 22 
 
 14 
 
 166.80 
 
 99.25 
 
 
 1.60 
 
 
 19.11 
 
 23 
 
 o 
 
 54.78 
 
 162.25 
 
 1.50 
 
 
 
 27 31 
 
 24 
 
 10 
 
 149.41 
 
 115.00 
 
 
 
 
 26. 44 
 
 25 
 
 7 
 
 110.15 
 
 70 80 
 
 
 
 
 25 85 
 
 26 
 
 8 
 
 197.87 
 
 111.00 
 
 1.00 
 
 
 
 38. 73. 
 
 27 
 
 8 
 
 175.30 
 
 96.50 
 
 12.00 
 
 
 
 35 47 
 
 28 
 
 11 
 
 151.39 
 
 278.40 
 
 2.50 
 
 
 
 39.20 
 
 29 
 
 5 
 
 100.48 
 
 130.90 
 
 
 
 
 46 27 
 
 30 
 
 13 
 
 278.59 
 
 309.75 
 
 
 1.40 
 
 
 45.35 
 
 31. .. 
 
 9 
 
 130.99 
 
 96.00 
 
 
 
 
 25 22 
 
 32 
 
 4 
 
 66.17 
 
 95.00 
 
 
 
 
 40.29 
 
 33 
 
 4 
 
 92.51 
 
 90.00 
 
 
 
 
 45 62 
 
 34 
 
 6 
 
 111.14 
 
 54.75 
 
 
 
 
 27.64 
 
 35 
 
 6 
 
 172.32 
 
 67.50 
 
 
 
 
 39 97 
 
 36 
 
 4 
 
 89 51 
 
 85 50 
 
 
 
 
 43 75 
 
 37 
 
 2 
 
 59.23 
 
 12.00 
 
 
 
 
 35 61 
 
 38 
 
 3 
 
 144.00 
 
 127.00 
 
 
 
 
 90 33 
 
 39 
 
 3 
 
 61.25 
 
 147.70 
 
 
 
 
 69 65 
 
 40. 
 
 4 
 
 140.48 
 
 156.40 
 
 
 
 
 74 22 
 
 41 
 
 4 
 
 187 71 
 
 155 35 
 
 
 
 
 85 76 
 
 42... . 
 
 4 
 
 216.93 
 
 150.50 
 
 
 
 
 91 85 
 
 43 
 
 3 
 
 118.49 
 
 31.45 
 
 4.00 
 
 
 
 57.31 
 
 44 
 
 1 
 
 18.54 
 
 40.25 
 
 
 
 
 58 79 
 
 45.... 
 
 1 
 
 26.50 
 
 69.00 
 
 
 
 
 95.50 
 
46 
 
 STATE DEPARTMENT OF LABOR 
 
 I iicii l -n( to Employment ( Continued ) 
 
 No. 
 Days 
 
 No. 
 Cases 
 
 Compen- 
 sation 
 
 Medical 
 A t ten- 
 tion 
 
 Hospital 
 Services 
 
 Ambu- 
 lance 
 
 ' 
 Nurse 
 Hire 
 
 Average 
 Benefit 
 to 
 Employe 
 
 46 
 
 2 
 
 $56 76 
 
 $55 00 
 
 
 
 
 $55 88 
 
 47 
 
 2 
 
 77.00 
 
 50.50 
 
 $16.80 
 
 
 
 72 15 
 
 48 
 
 4 
 
 124 65 
 
 151.65 
 
 
 
 
 ex ')? 
 
 49 
 
 2 
 
 87.50 
 
 54.00 
 
 
 
 
 70 75 
 
 50 
 
 3 
 
 99 60 
 
 71.50 
 
 
 
 
 57 03 
 
 61 
 
 5 
 
 166 92 
 
 168 50 
 
 
 
 $24 05 
 
 71 89 
 
 52 
 
 3 
 
 53 49 
 
 2.50 
 
 
 
 
 18 66 
 
 54 
 
 2 
 
 51 00 
 
 38 00 
 
 1 50 
 
 
 
 45 25 
 
 55 
 
 2 
 
 112.45 
 
 78.50 
 
 
 
 
 95 47 
 
 56 
 
 2 
 
 85 24 
 
 35 00 
 
 
 
 
 60 12 
 
 57 
 
 6 
 
 491.84 
 
 206.00 
 
 10.00 
 
 
 
 117.97 
 
 58 
 
 1 
 
 40 00 
 
 35.00 
 
 
 
 
 75 00 
 
 59 
 
 2 
 
 109.67 
 
 60.00 
 
 
 
 
 84.83 
 
 60 
 
 1 
 
 68 60 
 
 35.00 
 
 
 
 
 103 60 
 
 61 
 
 2 
 
 139 20 
 
 107 20 
 
 
 
 
 
 62 
 
 3 
 
 182 25 
 
 51.50 
 
 
 
 
 77 91 
 
 63 
 
 1 
 
 350.00 
 
 60.00 
 
 2.00 
 
 
 
 412.00 
 
 64 
 
 1 
 
 15.25 
 
 17.00 
 
 
 
 
 
 65 
 
 1 
 
 10 00 
 
 21 00 
 
 
 
 
 31 00 
 
 68 
 
 1 
 
 161.36 
 
 134.75 
 
 
 
 
 296 11 
 
 69 
 
 1 
 
 59 00 
 
 87 00 
 
 
 
 
 146 00 
 
 70 
 
 3 
 
 ' 217.30 
 
 46.50 
 
 
 
 
 87.93 
 
 71 
 
 1 
 
 560 63 
 
 65 00 
 
 
 
 
 625 63 
 
 72 
 
 1 
 
 77.50 
 
 86.00 
 
 
 
 
 163.50 
 
 75 
 
 1 
 
 107 14 
 
 29 00 
 
 
 
 
 136 14 
 
 76 
 
 2 
 
 183.80 
 
 85.72 
 
 4.30 
 
 
 
 136.91 
 
 78 
 
 1 
 
 60 50 
 
 194 00 
 
 
 
 
 254 50 
 
 84 
 
 3 
 
 230.25 
 
 186.15 
 
 
 
 
 138.80 
 
 88 
 
 1 
 
 45 00 
 
 67 00 
 
 
 
 
 112 00 
 
 91 
 
 1 
 
 130.00 
 
 30.45 
 
 
 
 
 160.45 
 
 93 
 
 1 
 
 66.66 
 
 37.00 
 
 
 
 
 103.66 
 
 96 
 
 1 
 
 84.40 
 
 
 
 
 
 84.40 
 
 97 
 
 1 
 
 95.66 
 
 128.50 
 
 
 
 
 224.16 
 
 98 
 
 1 
 
 217.40 
 
 46.55 
 
 
 
 10.00 
 
 273.95 
 
 102 
 
 1 
 
 105.00 
 
 81.00 
 
 
 
 
 186.00 
 
 105 
 
 1 
 
 53 34 
 
 26 00 
 
 
 
 
 79 34 
 
 108 
 
 1 
 
 92.70 
 
 21.35 
 
 3.00 
 
 
 
 117.05 
 
 116 
 
 1 
 
 144 00 
 
 35 00 
 
 
 
 
 179 00 
 
 118 
 
 1 
 
 119.36 
 
 37 00 
 
 24.30 
 
 
 
 170.66 
 
 124 
 
 1 
 
 I 26 25 
 
 50 00 
 
 30 00 
 
 
 
 
 106 25 
 
 127 
 
 1 
 
 180.00 
 
 106.51 
 
 
 
 
 286.51 
 
 131 
 
 1 
 
 98 43 
 
 150 00 
 
 34 00 
 
 
 
 282.43 
 
 136 
 
 1 
 
 226.03 
 
 102.15 
 
 
 
 
 328.18 
 
 164 
 
 1 
 
 1 625.00 
 
 56 10 
 
 
 
 
 t; s i 10 
 
 165 
 
 1 
 
 308 13 
 
 90 00 
 
 
 $ 1 00 
 
 
 398 13 
 
 209 
 
 1 
 
 150.00 
 
 25.00 
 
 
 
 
 175.00 
 
 297 
 
 1 
 
 325.00 
 
 1,116.95 
 
 37.50 
 
 
 
 1,460.95 
 
 Not 
 given 
 
 13 
 
 539.99 
 
 344.'00 
 
 16.00 
 
 9.00 
 
 
 908.95 
 
 
 
 
 
 
 
 
 
 Totals 
 
 363 , 
 
 12,168.42 
 
 $8,854.41 
 
 $226.15 
 
 $15.90 
 
 $34.05 
 
 
WORKMEN'S COMPENSATION LAW 47 
 
 "Employers Liability" at Common Law 
 
 It is assumed that employers and employes are alike interested in any 
 change of conditions which affects their relation as such, and therefore the 
 provisions of the "Workmen's Compensation Law of 1913" and the opera- 
 tion of such law during the first year of its use and application to work 
 accidents in Nebraska are of especial interest and importance to both 
 employer and employe. To assist those who are so vitally . interested, and 
 who desire to become acquainted with the provisions of the compensation 
 law and its operations and application, this bulletin is issued. 
 
 It is not the intention to here enter into any extended discussion of the 
 common law as it heretofore existed, with reference to the relation of 
 master and servant; nor is it the intention to dwell at length upon the con- 
 ditions and considerations which may have influenced the legislature in 
 enacting into law the specific plan of compensation for injured or killed 
 employes, but the purpose will have been accomplished if it is stated in a 
 brief and concise manner the common law principles and statutory modifica- 
 tions thereof, upon which recoveries for injuries to employes injured in the 
 course of their employment have heretofore been based, and the statutory- 
 rule giving to the dependents or legal representatives of killed employes a 
 right of action against the employer, and the changes wrought in such 
 common law and statutory rules by the compensation law. 
 
 The principles of the comomn law, except as it may have been modi- 
 fied by statute, have heretofore determined the right of an employe to 
 recover from his employer for an injury received during the course of his 
 employement, and the right of recovery depended solely, in the first instance, 
 on whether the employer had been negligent in performing some duty to- 
 ward the employe imposed upon him by law, or implied from the contract 
 of employment. 
 
 The contract of employement under the common law imposed the 
 obligation upon the employer to use ordinary care in the following par- 
 ticulars : 
 
 1. In furnishing his employes a safe place in which to work. 
 
 2. In furnishing safe tools and machinery with which to work. 
 
 3. In making reasonable rules and regulations. 
 
 4. In the selection of reasonably competent persons to assist in the 
 work to be done. 
 
 The contract of employment likewise imposed certain obligations to be 
 observed by the employe, among which were: 
 
 1. That he should use ordinary care to avoid injury to himself. 
 
 2. That he should obey and observe such reasonable rules and regula- 
 tions as might be formulated by the employer for the orderly disposition of 
 the work in hand, and for the safety of employes generally. 
 
48 STATE DEPARTMENT OF LABOR 
 
 3. That he should assume such ordinary risks as are incident to the 
 employment. 
 
 4. That he should assume the risk of injury received on account of the 
 negligence of his fellow servants. 
 
 The failure of the employer to so use ordinary care, which is such care 
 as the ordinary prudent man would exercise under like circumstances and 
 conditions, renders the employer liable in damages for any injury that may 
 result to his employe provided always that the employe has himself 
 observed the conditions imposed upon him by the contract of employment. 
 
 It will be observed that the employer is never liable in damages for 
 an injury to his employe unless he has failed to exercise "ordinary care" in 
 other words, unless he is negligent in failing to perform the duties on his 
 part to be performed, which are imposed upon him by law, or are implied 
 by the contract of employment. Neither is the employer liable, although 
 negligent, if at the time of receiving his injury, the employe himself was not 
 exercising due care for his own safety, and such failure on his part to so 
 exercise due care contributed in any degree to his injury. 
 
 We believe the foregoing to be a fairly accurate statement of the 
 common law principle governing in all cases where an embloye seeks to 
 recover damages from his employer for an injury received in the course of 
 his employment, and in the practical application of the law in contested 
 cases, where the fact of injury itself is not contested, the employer may 
 plead and prove as a defense the violation by the employe of any one of the 
 obligations imposed upon him by the contract of employment, in which 
 event, he is said to assert the "common law defenses" which are: 
 
 1. That the employe was not, when injured, in the exercise of due care 
 or was guilty of contributory negligence. 
 
 2. That the injury received by the employe was one of the risks inci- 
 dent to the contract of employment. 
 
 3. That the injury was the result of the negligence of a fellow servant. 
 These defenses are commonly referred to as "contributory negligence," 
 
 "assumption of risk" and "the fellow servant rule." 
 
 It will thus be seen that by the common law rule the employe assumes 
 all the ordinary risks incident to his employment, and that his employer is 
 only liable when he is guilty of negligence and the employe is wholly free 
 from negligence and his injury was not caused by the negligence of a fellow 
 servant. 
 
 The common law gave no right of action to the personal representative 
 of a killed employe on account of the death of such employe. 
 
 Defenses Under the Common Law 
 
 For a breach of duty to an employe resulting in injury, an action will 
 lie for the recovery of damages. Employers are not insurers, however, and 
 are liable for the consequences, not of danger, but of negligence. Some duties 
 are by statute made obligatory upon the employer to such an extent as 
 practically to fix his liability in case of injuries entailed by their omission. 
 Apart from such enactments, however, the employer may, in case of an 
 
WORKMEN'S COMPENSATION LAW 49 
 
 action for damages, offer a defense based on the principle expressed in the 
 maxim, "Volenti non fit injuria;" or he may undertake to prove the plain- 
 tiff's assumption of the risk, or his contributory negligence; or he may rely 
 on the doctrine of common employment to relieve him from liability 
 
 The principle of the maxim, "Volenti non fit injuria," is of general 
 application, the meaning of the phrase as freely rendered being "That to 
 which a person assents is not esteemed in law an injury." A clearer state- 
 ment is that by an English judge, "One who knows of a danger from the 
 negligence of another, and understands and appreciates the risk therefrom 
 and voluntarily exposes himself to it, is precluded from recovering for an 
 injury which results from the exposure." In brief, the injured person has 
 assumed the risk ; and, apart from the contractural relation of employer and 
 employe, there is a considerable class of cases in which this defense to an 
 action for damages may be interposed. The invitation or assent is not 
 necessarily or even commonly formal, but is inferable from conduct and 
 conditions, often subsequent to the entrance upon the situation that give.-, 
 rise to the circumstances to which the doctrine is applied. 
 
 English courts have more definitely fixed the application of the principle 
 than is the case in this country, where it has been fully discussed in compar- 
 itively few juridictions, but neither in England nor in America are the 
 authorities agreed on its application to concrete cases nor on its relation to 
 the doctrines of contractural assumption of risk and of contributory negli- 
 gence. Many authorities hold that the rule of the maxim covers the ground 
 of the usual defense of assumed risks under the employe's contract, besides 
 its own field of non-contractural relation, while others regard the two 
 defenses as distinct. It may be said here, however, that the distinction is 
 not always maintained, and it is held by some courts that the person des- 
 cribed as volens may be better described as negligent, or, rather, that the 
 person making the voluntary choice may be none the less guilty of con- 
 tributory negligence. In so far as the liability of employers is concerned, 
 it appears that the more general application of the rule in this country 
 follows the same lines as are observed in connection with the doctrines of 
 assumed risks under the contract of employment. 
 
 / 
 
 Contributory Negligence 
 
 When a risk involves such a degree of danger that a prudent man would 
 not assume it, the defense to an action by an injured employe is not that 
 the plaintiff by his contract assumed the risk, but that he was, by his con- 
 duct, guilty of contributory negligence. The line is not clearly drawn 
 between the two defenses, nor is it always easy to do so, inasmuch as the 
 facts in a given case may support either defense. The principles are dis- 
 tinct, however, as assumption of risk is an implied or actual agreement, en- 
 tered into before the happening of the accident, to waive compensation from 
 the employer for injuries resulting therefrom; or, it is an incident of the 
 contract, read into it by the fixed rules of law. If, however, there has been 
 contribtuory negligence, there is no reference to either contract or status to 
 
50 STATE DEPARTMENT OF LABOR 
 
 determine rights, but only to the conduct of the employe. If under all the 
 attendant circumstances he fell short of reasonable and ordinary care, the 
 defense of contributory negligence will lie against him. 
 
 The rule is announced by Cooley as follows: "If the plaintiff or party 
 injured, by the exercise of ordinary care under the circumstances, might 
 have avoided the consequences of the defendant's negligence, but did not, 
 the case is one of mutual fault, and the law will neither cast all the con- 
 sequences upon the defendant, nor will it attempt any apportionment there- 
 of." The contributory negligence must be thaf of the party injured; that 
 of a fellow-servant co-operating with the negligence of the master being 
 no defense to the latter for injuries resulting from the combined negligence. 
 
 Coarse of Employment 
 
 It may occur that an injured person received his injury under circum- 
 stances that raise the question whether or not the accident occurred as the 
 result of his employement within its true bounds. Such a question arises, 
 for instance, when an employe is being transported on a vehicle owned or 
 operated by his employer. If the injury was received while he was being 
 transported for the purpose of forwarding the undertaking for which he was 
 engaged, it will be regarded an incident of his employment, and the rules 
 as to assumption of risks will control. The possible negligence of the 
 employe engaged in operating a train on which a bridge gang is, according 
 to custom, being conveyed to the place of its actual work is such a risk as 
 would ordinarily be contemplated in accepting such employment. The same 
 rule will apply to the negligence of other classes of employes, as track 
 hands, if their negligence would not have furnished ground of action if the 
 injured employe had been actually at work at the time of his injury. 
 
 If, however, the employe was traveling entirely for his own purposes, 
 and was not at the time subject to the orders of his employer, the relations 
 of master and servant will be held to be suspended, and the injured person 
 will have the rights of a stranger. In a Pennsylvania case it was held that 
 an employe who received transportation to and from the place of his 
 employment as a part of his compensation was entitled to redress as a 
 passenger in the event of an accident inflicting injury. The same view 
 seems to have been taken by the supreme court of Washington, while in 
 New York this ruling was condemned, and the fact of transportation being 
 considered as part payment for his services was held not to take the case 
 out of the rule stated in the paragraph above. The courts of Kentucky, 
 Massachusetts, Pennsylvania, and Tennessee have allowed recovery for 
 injuries received by employes riding on trains or street cars at the close of 
 the day's work or for meals without payment of fare, the view being taken 
 that such transportation was not connected with the performance of their 
 duties, which were at an end for the time, and that they had no connection 
 with the operation of the vehicle on which they rode. 
 
 The variety of facts involved in cases presenting the question of course 
 of employment is so great that it would practically require an enumeration 
 of the decisions to present the attitude of the courts thereon. The general 
 
WORKMEN'S COMPENSATION LAW 61 
 
 rule has been mentioned, i. e., that the employer is not liable for injuries 
 incurred by employes going beyond the scope of their employment. They 
 approximate the condition of volunteers, with whom they are sometimes 
 classed. By the term "volunteers" is meant persons not in the service of 
 the employer prior to their engaging, without authorization, in the employ- 
 ment at which they received the injury complained of, and their situation is 
 in general no better than that of trespassers. They are held to have 
 assumed the limitations of servants without acquiring the right to claim the 
 performance of a master's duties toward them. They will be protected from 
 wanton injuries at the hands of the regular employes, however, and the 
 circumstances may be such that they will be held to warrant a service ren- 
 dered at the invitation of persons not ordinarily authorized to hire employes 
 so as to give to injured volunteers a right to recover. Or it might be said 
 that the situation of the persons so employed is modified so that they are 
 no longer regarded as volunteers, at least not as trespassers. 
 
 The reason for the rule as to volunteers is that no one can be subjected 
 to the obligations of an employer, which are the result of contract, without 
 his consent thereto, either express or implied. This being the case, the 
 situation of a person undertaking to render service, either on his own motion 
 or at the invitation of an unauthorized person, gains nothing from the fact 
 that the danger was not appreciated. This prevents exceptions in behalf of 
 minors, though in some jurisdictions they are regarded as trespassers when 
 they are too young to be charged with discretion, and thus a greater degree 
 of caution must be exercisd in their behalf. 
 
 The "Fellow Servant" Rule 
 
 The remaining defense to an employe's action for damages is what is 
 known as the 'fellow-servant" rule, or the doctrine of common employment. 
 According to this, where the employer has discharged his duties as to a safe 
 place, safe and suitable appliances, competent fellow-servants, etc., he is not 
 liable to an employe for the acts or negligence of any mere fellow-servant 
 or co-employe, provided such co-employe does not represent the employer. 
 Or, as it has been otherwise stated, "A master is not bound to indemnify 
 one servant for injuries caused by the negligence of another servant in 
 the same common employment as himself, unless the negligent servant 
 was the master's representative." If, however, the negligence of a co- 
 servant concurs with the negligence of an employer in causing the injury, 
 the injured employe not contributing thereto, the employer will be liable in 
 damages. 
 
 The well known diversity, not to say confusion and contradictoriness of 
 the rulings of the courts as to the application of this rule, arises from the 
 lack of precise and generally accepted definitions of the idea of common 
 employment and of representation of the master. The relations of this 
 doctrine to the other elements which determine employer's liability are such 
 that practically all that has been said with reference to the duties of the 
 employer and the assumption of risks by the employe must be read in the 
 light of the rulings of the jurisdictional courts on the subject, although the 
 principals involved are held to those of general law. In an opinion on a 
 
52 STATE DEPARTMENT OF LABOR 
 
 fellow-servant case which was before the Supreme Court of the United 
 States, a few years ago, it was said that "there is perhaps no mattter upon 
 which there are more conflicting and irreconcilable decisions in the various 
 courts of the lan'd than the one as to what is the test of common service, 
 such as to relieve the master from liability for the injury of one servant 
 through the negligence of another. Not only do the courts of the various 
 States differ, in the individual states are found fluctuations of opinions from 
 time to time, and the acceptance of new standards, with departures from 
 former positions, so that it is important to know the date of an adjudication 
 in order to determine the present construction in the state. 
 
 The attempt has been made in a number of states to fix by statute the 
 relations of employes to one another, and to determine the liability of the 
 employer for their acts of negligence; and this would appear to be the only 
 practical method of attempting a solution of the problem as it exists to-day. 
 It must be confessed, however, that even where statutes of different states 
 are closely similar if not identical in phraseology, the effect of local inter- 
 pretations is apparent in the varying constructions adopted. 
 
 The common law rule was enounced in England ant America at about 
 the same time, apparently independently, and to practically the same effect. 
 Subsequent developements have been more favorable to the employe in this 
 country than in England, however, some states having apparently lost sight 
 of the foundations of the rule. 
 
 The reasons offered by the courts for the rule have been various, one 
 being found in the view that the master's responsibility is at an end when 
 he has used ordinary care to employ competent servants. It is held that the 
 employe assumes the risk of the possible negligence of a co-employe as one 
 of the incidents of the employment. In another opinion of the Supreme 
 Court it was said that the obvious reason for exempting the employer from 
 liability, is that the employe has or is supposed to have such risks in con- 
 templation when he engages in the service, and his compensation is arranged 
 accordingly, so that he can not in reason complain if he suffers from a risk 
 which he has voluntarily assumed, and for the assumption of which he is 
 paid. Another reason is found in alleged grounds of public policy, as tend- 
 ing to make the employes more watchful over their own conduct and that 
 of their fellows ,thus benefiting employers, employes and the public alike 
 by the greater care with which they perform their duties. In close connec- 
 tion herewith is the claim that any marked enlargement of liability to 
 capital would lead to the withdrawal of capital from industrial enterprise, 
 thus reducing the opportunities of employment and inflicting damage upon 
 the whole community. 
 
 Each of these reasons has been the subject of adverse criticism, and no 
 one of them seems to give a satisfactory ground for excepting employes 
 from the benefits of the doctrine of respondeat superior, or for compelling 
 the employe to bear the burden of "pure accidents" which occur in the 
 prosecution of undertakings the advantage of which are to be reaped by the 
 employer. The last two reasons mentioned above have perhaps been most 
 frequently relied on as supporting the customary rule, though no such 
 results as are therein indicated have followed the adoption of statutes 
 
WORKMEN'S COMPENSATION LAW 53 
 
 greatly enlarging the rights of employes to recover for injuries following 
 upon industrial accidents. 
 
 The chief points requiring determination in any action involving the 
 principles under consideration are those of common employment and of 
 representative capacity. If it appears that the injuries complained of are 
 the result of the negligence of a co-employe, the only hope of the plaintiff 
 lies in showing that the negligent person was a vice-principal, representing 
 the master at the time, and so devolving upon him a liability for the acts or 
 omissions charged. 
 
 Assumption of Risks 
 
 When a contract of employment is entered upon, the law imports into 
 the agreement an assumption by the employe of the ordinary risks incident 
 to the employment, and of such other risks as may be known to and appre- 
 ciated by him. This is said to be a term of the contract, express or implied 
 from the circumstances of the employment. One seeking employment im- 
 pliedly represents that he is capable therefor, and that he comprehends the 
 ordinary risks. Another view of the defense is that it does not arise from 
 the contract of employment, but from the status of the employer and 
 employe as fixed by common law, and is over and above the contract, being 
 imposed by law upon the parties thereto, regardless of their desires. 
 
 Ordinarily the promise becomes effective as soon as made, but if ful- 
 fillment is set for some indicated period the employer does not become 
 liable under it until the arrival of the time indicated. The special res- 
 ponsibility of the employer continues for a reasonable period only, regard 
 being had for the circumstances of the individual case. A complaint by an 
 employe is in effect a declaration that he will no longer continue in service 
 under the conditions of danger, while the promise of the employer, so long 
 as its validity continues, is said to have established a new relation, the 
 employer impliedly agreeing that the employe shall not be held to have 
 assumed the risk. 
 
 The question of the employe's knowledge is in general controlling, but 
 the knowledge may be either actual or imputed. A workman of mature 
 years and ordinary intelligence, offering himself for employment, is pre- 
 sumed to know and appreciate the conditions and to assume the risks 
 ordinarily incident to the service and to have notice of all risks which, to 
 one of his experience and capacity, are, or ought to be, obvious. He does 
 not assume risks arising from conditions of which he was actually and 
 excusably ignorant; nor is he required to use more than ordinary care to 
 discover existing conditions. 
 
 There is, however, one class of cases in which the question of knowledge 
 is not raised, and that is where the conditions complained of are the result 
 of the employe's own choice or selection of a course of action. In such 
 cases the' risk is assumed irrespective of any implied term in his contract 
 of service, the employe , being held to be responsible for the proximate re- 
 sults of his own conduct. 
 
54 STATE DEPARTMENT OF LABOR 
 
 Ordinary Risks 
 
 The determination of what are ordinary risks evidently becomes im- 
 portant in view of the fact that with regard to them the employer is re- 
 lieved of all responsibility, even if the employe did use ordinary care, 
 unless by reason of inexperience or minority he was not chargeable with 
 having assumed such risks. 
 
 The courts have sometimes defined ordinary risks as those that per- 
 tain to the employment after the employer has discharged his duty as to 
 safe place, appliances, etc., and which ordinary care on his part cannot 
 guard against. Under another conception the word "ordinary" is held to 
 be construed in its usual sense. This may be taken to mean either that the 
 risk is obviously a normal incident of the employment that an intelligent 
 observer would recognize it as such, and the dangers arising therefrom as 
 constantly possible or it may imply that the employment unavoidably and 
 of necessity involves the risks, which is much the same as holding that the 
 master's care can not obviate them. 
 
 These risks are such as arise from the negligence of fellow-servants, 
 unless the employer was negligent in employing incompetent workmen; or 
 from the nature of the instrumentalities used; or from the conditions, 
 whether permanent or temporary, of the conduct and nature of the busi- 
 ness. The master can not undertake, for instance, to make railroad labor 
 or the manufacture of explosives as safe as many other employments, and 
 the hazards of such industries are held to be assumed according to the 
 standard for the industries themselves. In like manner works of construc- 
 tion and repair, in regard to which the master's liability was found to be 
 modified, cast upon the employe a correspondingly larger degree of risk, 
 which, by this principle, he is held to assume. This rule applies only to 
 employes actually engaged upon the work, and the risks assumed are those 
 that arise only from the work in hand and not from defects in portions of 
 the work already completed. 
 
 Extraordinary Risks 
 
 Risks which may be obviated by the exercise of reasonable care on the 
 part of the employer are classed as extraordinary, and these the employe 
 is held not to have assumed without a knowledge and comprehension of 
 the dangers arising from the employer's negligence. If the dangers are 
 patent or are brought to the knowledge of an employe, his entering upon 
 or remaining in service is presumed to have waived his claim against 
 the employer for resulting damages. In the first case he will be held to 
 have made his contract in the light of existing conditions; and as to risks 
 arising during employment it has been said that if a servant continues to 
 use an appliance which he knows to be dangerous he does so at his own 
 risk and not at that of his employer. It must appear, however, that the 
 risk was actually appreciated. While a failure to notify the employer 
 of discovered or known risks is construed as indicating the employe's 
 willingness to continue to work while they exist, the risk is not thrown 
 
WORKMEN'S COMPENSATION LAW 55 
 
 upon the employer by a mere notification not replied to by his promise to 
 repair. If the alternative of continuing to work with the defective appli- 
 ance or of leaving the employment is offered, and the employe continues to 
 work, he will be held to have assumed the risk. A promise to repair can 
 be relied upon only for a reasonable time, after which the risk will be upon 
 the employe. 
 
 \ 
 
 Common Employment 
 
 What constitutes common employment? It was said in a leading case 
 that, "prima facie, all who enter into the employ of a single master are 
 engaged in a common service, and are fellow-servants," but this broad 
 statement will not answer as a conclusive test. Not only employment by a 
 common master, but also engagement in the performance of duties that 
 may reasonably be said to tend to the accomplishment of the same end 
 is necessary to meet general acceptance by the courts; nor is it a suffi- 
 cient answer to say that all serve the profit or convenience of a common 
 employer. While another servant than the plaintiff, employed for a pur- 
 pose entirely different from his duties, has negligently caused the injury 
 complained of, it may well be said that they are not fellow-servants. But 
 even with this qualification the statement is not definite enough to be of 
 much use in determining particular cases, and the impressions used by 
 judges in passing on the question of common employment throw little light 
 on the subject. "Engaged in the same general business," "the same gen- 
 eral undertaking," or "in promoting one common object," are frequent modes 
 of expression, though in other cases the somewhat more restricted phrases, 
 "services having an immediate common object" or "working in the same 
 place to subserve the same interests," are used. The question involves 
 both law and facts, but where the latter are undisputed, the decision be- 
 comes simply a matter of law, and the trial jury will not pass upon it.- 
 
 Preventable Accidents 
 
 What are termed "preventable accidents" will not be prevented, solely, 
 by the installation of safety devices and methods. If they are to be pre- 
 vented it will be largely due to the co-operation of the workman with his 
 employer in a careful endeavor to avoid accidents. The point to keep 
 firmly in mind is that no system for compelling the installation of safety 
 appliances, enforced by law, or executive order, will be effective unless the 
 workman lends his serious attention to the object and purpose of the 
 safety installations. The fact that every accident now costs the business 
 a fixed sum of money is a powerful factor in arousing the employers to 
 take active measures toward the prevention of accidents; but this is only 
 a part of the successful measures that minimize accidents. The workman 
 himself must contribute the main factor to bring about this most desirable 
 elimination of preventable accidents. He can do it if he will. If he will 
 but realize that compensation is a poor substitute for loss of life and limb, 
 
56 STATE DEPARTMENT OF LABOR 
 
 or health, it will surely awaken his sensibilities to the fearful burden that 
 he voluntarily places on his shoulders by being thoughtless, careless, 
 slovenly or incautious and unmindful of the work he is engaged in. 
 
 Compensation is an economic way of meeting the hazards that attend 
 industry. Its co-efficient is "Safety" and to the instilling of this faculty 
 in the minds of everyone, we must look for and expect a decrease of the 
 distressing accidents that have been unnecessarily attending hazardous 
 employments. 
 
 The vital end to reach at this time is that of impressing on the minds 
 of those who work in dangerous pursuits the necessity of constant caution. 
 An ever-present interest in the thing being done and the safe way to do it, 
 will in most cases prevent accidents. Eliminate negligence by installing 
 prudence, discard carlessness for expert and scientific interest in the work 
 in hand and accidents with their terrible results will be rendered to the 
 minimum. 
 
 Unavoidable Accidents 
 
 All accidents classified as unavoidable should be carefully investigated 
 by the employer and the causes removed or provided against insofar as 
 the business or industry will permit. The prevention of accidents should 
 be the first consideration in all hazardous occupations. It saves money, 
 saves time, prevents accidents, prevents suffering, improves conditions 
 and creates higher industrial ideas. Safety both saves and pays and by 
 effective mutual organization and co-operation changes can be brought about 
 whereby "preventable injury losses" can be changed to profits, with all the 
 other benefits that such a change implies. 
 
 Of course, it cannot be claimed that accidents will not happen regard- 
 less of precaution. It is acknowledged that in spite of the organizations 
 and the most impressive admonitions, that machinery will fail and human 
 judgment be at fault. This is a deplorable fact, perhaps inseparable from 
 our economic life. Nevertheless, accidents that result from carelessness, 
 thoughtlessness, ignorance or absent mindedness can and should be avoided. 
 Mind wandering from the actual work that the employe is engaged in is 
 probably one of the most fruitful sources of accidents. The workman 
 who goes about his work as though he were in a trance is sure to come 
 to grief. 
 
 Compensation laws and safety provisions are made for the workman. 
 He is not expected to be a subjective beneficiary only but an active agent 
 in forestalling these unfortunate happenings which necessitate compensa- 
 tion laws. 
 
 Every intelligent human being knows that nothing "just happens." 
 Everything is the result of an efficient cause. So-called unavoidable acci- 
 dents can be traced to a falling short in observation, experience or judg- 
 ment in one form or another. Detailed investigation will nearly always 
 show that if the unfortunate had given closer observation, or more attentive 
 care to what he was doing and had exercised thoughtful caution and clear 
 judgment, that the accident would not have occurred. 
 
WORKMEN'S COMPENSATION LAW 57 
 
 Employes with known caution and thoughful carefulness are every- 
 where preferred to a reckless worker, who may bring disaster upon him- 
 self and expense to his employer through lack of caution. Carefulness 
 should become an object of intelligent appreciation and a part of the 
 necessary equipment of an employe engaged in hazardous occupation. 
 
 Promise to Repair 
 
 In cases where repairs are needed, and the fact is known to the serv- 
 ant, the risk involved in continuing in the service under the conditions 
 of disrepair may be shifted to the employer by giving a promise to remedy 
 the defective conditions. The effect of the promise is the same whether 
 it is made in response to a complaint by the servant or voluntarily. The 
 fact that a promise was made does not suffice to conclude the investiga- 
 tion, however, whether the question be one of assumed risks or of contrib- 
 utory negligence. It serves only to introduce new facts for consideration. 
 
 A mere complaint by an employe or a surmise that the employer's 
 knowledge of conditions will cause him to make the needed changes will 
 not suffice to cast the liability on the master in any different degree from 
 that indicated in the discussion of his duties as to repair. A definite 
 promise relating to the agency that actually occasioned the injury, or such 
 act or expression as would reasonably give rise to an inference of such 
 promise, is necessary. The promise must be made by the employer or his 
 representative, and must be the inducement for the employe's continuance 
 in the situation where the injury occurred. (Bodwell vs. Nashua Mfg. Co., 
 1900, 70 N. H. 390, 47 Atl. 613.) 
 
 Though the effect of such a promise is not entirely excluded from con- 
 sideration in cases where it was given before the beginning of work, 
 the doctrine applies chiefly to cases where it was made subsequent to such 
 beginning. It is then held to rebut the presumption that the employe 
 assumed the risk or that he was guilty of contributory negligence in re- 
 maining in a place of known danger, though it does not of itself entitle 
 an injured employe to recovery. 
 
 Doctrine of Workmen's Compensation 
 
 The doctrine of "Workmen's Compensation" involves an abandonment 
 of the rules of employers' liability for industrial accidents, as fixed by com- 
 mon law and by statute, and the substitution therefor of a system which 
 will avoid long drawn-out and expensive litigation in the courts, and 
 secure for every workman injured in the course of employment, a limited 
 amount of compensation, based on his earning capacity and the nature 
 of the injury. 
 
 The doctrine of compensation for industrial accidents has been sub- 
 stituted for the civil action based on fault or negligence in all the 
 countries of continental Europe, with the exception of Switzerland and 
 Turkey. It was first adopted in England in 1897. 
 
58 STATE DEPARTMENT OF LABOR 
 
 The question of workmen's compensation has' been the subject of much 
 study and investigation in our country in recent years by organizations 
 representing both employers and employes, such investigations being made 
 with the view of ascertaining whether it would be preferable, from an 
 economic standpoint, to substitute the principle of compensation for the 
 common law and statutory rules based upon fault or negligence. 
 
 Not only is the compensation plan approved by organized employers, 
 but it also has the approval of organized labor. 
 
 Modern economic conditions have resulted in two general plans of com- 
 pensation for injured employes, neither of which is founded upon common 
 law principles of liability. Each plan contemplates that compensation be 
 made for every injury or death occurring to an employe in the course of 
 his employment, which is not self-inflicted, and eliminates entirely . the 
 question of negligence. 
 
 Chief Justice Fullerton, in the course of his opinion sustaining the con- 
 stitutionality of the Washington law, said: "The evil it seeks to remedy is 
 one that calls loudly for action. Accidents to workmen engaged in indus- 
 tries enumerated in it are all but inevitable. It seems that no matter how 
 carefully laws for the prevention of accidents in such industries be framed, 
 or how rigidly they may be enforced, there is an element of human equa- 
 tion that enters into the problem which cannot be eliminated and which 
 invariably causes personal injuries and consequent financial losses to work- 
 men engaged therein. Heretofore these losses have been borne by the 
 injured workmen themselves, by their dependents, or by the state at large. 
 It was the belief of the legislature that they should be borne by the in- 
 dustries causing them, or, perhaps more accurately, by the consumers of 
 the products of such industries. That the principle sought to be put into 
 effect is economically, sociologically and morally sound, we think must be 
 conceded. 
 
 "The common law does not purport to afford a remedy for the condi- 
 tions found to exist. It affords relief to an injured workman in only a 
 limited number of cases; cases where the injury is the result of fault on 
 the part of employer and there is want of fault on the part of the work- 
 man. For the greater number of injuries traceable to the dangers incident 
 to industry, no remedy at all is afforded." 
 
 Advantages of Workmen's Compensation 
 
 There are, at least, three very desirable direct advantages of work- 
 men's compensation over common and statutory liability laws: 
 
 1. It secures promptly to the injured workman, and in case of his 
 death, to his dependents, a certain compensation instead of the often long 
 delayed and very uncertain final result of a lawsuit. 
 
 The compensation, in the first instance, is made to fall upon the em- 
 ployer, not as a punishment, not because he was at fault, but in order to 
 throw the burden ultimately upon those who enjoy the product. 
 
 Those who enjoy the product, ultimately pay the compensation, and 
 should render certain to the injured workman what is justly due him and 
 
WORKMEN'S COMPENSATION LAW 59 
 
 prevent him and his dependents fr om becoming the objects of a most 
 undesirable charity. 
 
 Under the old system only a small per cent of the injuries resulting: 
 from industrial accidents were actually compensated. 
 
 The premiums paid for liability insurance, and which was considered 
 a legitimate item in the cost of production, were largely expended in de- 
 fending lawsuits. 
 
 This system resulted in actual waste. It insured the results of law- 
 suits, and wholly failed to provide direct protection to the workmen and 
 indirect protection to the public, as it should. 
 
 Under the compensation system, it must be expected that the number 
 of payments will be greatly increased, but the elimination of the waste 
 incurred in the litigation of claims under the old system will certainly have 
 a material effect in keeping the cost of compensation within reasonable 
 limits. 
 
 2. The certainty that compensation will be paid is sure to be con- 
 ducive to the contentment of the workmen. 
 
 The elimination of the probability of a lawsuit between the employer 
 and employe, in the event of the injury of the latter, is bound to be pro- 
 ductive of a better state of harmony and co-operation between them. It 
 may be expected to reduce the probability of friction, discord and ill feel- 
 ing and bring about a closer and more compatible relationship between the 
 employer and the employe. 
 
 3. The certainty that injuries are to be compensated is a potential 
 factor for safety. It will compel the employer to consider the causes of 
 injuries and the means of preventing them. It is a silent, automatic and 
 constant argument for the best working conditions, and the removal of 
 the opportunities for accidents. It pleads not merely for "safety first" 
 but for "safety all the time." 
 
 The principle of social justice and right, which underlies, and which, 
 in fact, is the foundation of workmen's compensation, is that industry 
 should bear the burden of its accidents, and that the cost thereof should 
 be added to the selling price of its products, and be distributed among the 
 consumers. 
 
 In orther words, that the loss occasioned by accidents is as much a 
 part of the cost of the article in the production of which the workman 
 was employed at the time of the accident and his injury, as is the loss 
 occasioned by the destruction of material, the breaking, the wearing out 
 and replacing of tools and machinery. If a mule be kept and employed 
 alone in the production of a commodity and becomes injured, the expense 
 of its injury becomes a part of the cost of production, even though its 
 injury is not due to its employment. There is vastly more reason for 
 treating the expense of an injury to a human employe as a part of the 
 cost of the production of the commodity, when the injury is caused by an 
 accident arising out of and in the natural course of the production of the 
 commodity. Reason should cer.tainly accord the expense of the injury of 
 the human employe, caused by an accident arising out of and in the course 
 
60 STATE DEPARTMENT OF LABOR 
 
 of his employment, as close a relationship to tne cost of the production 
 of the commodity in which he was engaged at the time of his injury, as it 
 does the expense of the injury of the mule, caused by an accident entirely 
 outside of its employment. 
 
 The Supreme Court of Wisconsin vs. Miller (144 N. W. 188) announces 
 the rule that personal injury losses, not intentionally incurred, arising out 
 of, and in the course of the production of an article, whether occasioned by 
 the fault of the employer, or injured workman, or without fault of either, 
 are as legitimate of the value of the money cost of the production of the 
 commodity as are expenses for raw material, for machinery or wages. 
 
 The doctrine that an employer or the product that he is manufacturing, 
 or producing, shall be responsible for the cost of injuries occurring to 
 workmen, without any consideration as to where the fault may lie, is 
 almost a complete reversal of the rules of common law, governing statu- 
 tory liability of employers. The fact that the compensation law not only 
 makes it possible, but legal, that the injured employe may recover from 
 his employer for injuries received, even though the same may be really 
 caused by his own contributory negligence or the negligence of a fellow 
 servant, or through the inherent risk of the employment, is a radical change 
 or abrogation of the common law rules governing employers' liability. 
 
 The operation of the first year of the Nebraska Workmen's Com- 
 pensation Law has brought forth words of approval for the principle of 
 compensation for work accidents from a large number of employers and 
 employes, as well as the public at large, and the consumers, who in the 
 end are the real liguidators or bearers of the cost of compensation. Gov- 
 ernor Boyle of Nevada, in his recent inaugural address, said: 
 
 "Modern legislation, of this type, providing for compensation to the 
 victims of industrial accidents, reflects the changed attitude of public opin- 
 ion toward the relation of employer and employe. 
 
 "Under the old system of what was termed 'Employer's Liability/ the 
 question of 'fault' was the basis of recovery, and recovery by the injured 
 person was made difficult and expensive, as a result of court procedure, and 
 often impossible as a result of court rulings out of tune with our progres- 
 sive and humanitarian ideas of social relations and social justice. 
 
 "Workmen's Compensation legislation is predicated on the theory that 
 industrial enterprise creates a source of danger and becomes responsible 
 for damages resulting from that source; that risk as well as labor should 
 be compensated, and that the industry should be made to bear its proper 
 share of the financial burden growing out of industrial accidents, rather 
 than permitting the full burden to be borne by the individual workman who 
 happens to be the victim of a particular accident. Under this theory the 
 question of 'fault' is eliminated and the fact that an injury has been sus- 
 tained in any employment establishes automatically the right to compen- 
 sation. 
 
 "The wisdom and justice, as well as the true economy of such legisla- 
 tion, is so universally recognized today that argument in its favor appears 
 unnecessary." 
 
WORKMEN'S COMPENSATION LAW 61 
 
 The Constitutionality of Compensation Laws 
 
 The declaration that an employer shall be responsible for injuries to 
 his workmen without regard to the fault of the employer, is entirely a 
 reversal of the common law rules, and of statutory employers' liability laws. 
 The doctrine that an employe may recover from his employer for injuries 
 incurred by reason of his own contributory negligence, or the negligence 
 of a fellow servant, or on account of the inherent risk of the employment 
 is an abrogation of the rules of the common law, but the courts of the 
 United States with almost complete harmony hold that the compensation 
 principle rests on a sound economic, moral and legal foundation. 
 
 Among the decisions so holding are the following: 
 
 Massachusetts Statute: Ex parte opinion of Supreme Court justice, 
 209 Mass. 607; 96 N. E. 308. 
 
 Borgnis vs. Falk Company, 147 Wis. 327; 133 N. W. 224. 
 
 State vs. Clausen, 65 Wash. 156; 117 Pac. 1101. 
 
 State vs. Creamer, 85 Ohio St. 349; 97 N. E. 602. 
 
 Section vs. Newark District Telephone Co., 8^4 N. J. L. 85; 86 Atl. 451; 
 86 N. J. L. 701. 
 
 Cunningham vs. Northwestern Improvement Co., 44 Mont. 108; 119 
 Pac. 554. 
 
 Stoll vs. Pacific Coast Steamship Co., 205 Fed. 169. 
 
 Mondon vs. N. Y., N, H. & H. Ry. Co., 223 U. S. 1; 32 Sup. Ct. Rep. 
 169; 56 L. Ed. 327. 
 
 Deibeikis vs. The Link-Belt Co., 261 111. 454; 104 N. E. 211. 
 
 Crooks vs. Tazewell Coal Co., 105 N. E. 132. 
 
 Dietz vs. Big Muddy Coal and Iron Co., 263 111. 480. 
 
 Memphis Cotton Oil Co. vs. Tolbert, 171 S. W. 309. 
 
 Jeffrey Manf. Co. vs. Blagg, U. S. 35; Sup. Ct. Rep. 167. 
 
 Shade vs. Ash Grove Lime and Portland Cement Co., 92 Kan. 146; 139 
 Pac. 1193; 144 Pac. 249. 
 
 Zumkehr vs. Diamond-Portland Cement Co., 23 Ohio Dec. 224. 
 
 Pendar vs. H. & B. American Machine Co., 87 Atl. 1. 
 
 State vs. Mountain Timber Co., 135 Pac. 645. 
 
 Constitutionality of Statutes 
 
 An important decision in a case of first impression under the present 
 statute has been rendered by the Supreme Court of California, sustaining 
 the constitutionality of the compulsory law of 1913, likewise compulsory, 
 has also been before the court of that state recently on questions of con- 
 stitutionality, the decision upholding the law generally and applying it to a 
 case in which the injured workman was employed in unloading a vessel 
 which was engaged in interstate commerce. It was held that until Congress 
 acts in behalf of such workmen, recovery is determined by the State Laws 
 of the jurisdiction within which the injury was received. (Jensen vs. 
 Southern Pacific Co., decided by the New York Court of Appeals, July 13, 
 1915, 109 N. E., 600.) 
 
62 STATE DEPARTMENT OF LABOR 
 
 Another interesting decision in the same field was handed down by 
 the Supreme Court of New York (appallate division) in the case of Win- 
 field vs. New York Central, etc., R. Co. (153 N. Y. Supp., 499). The injured 
 man was concededly engaged in interstate commerce, so that if the injury 
 had been due to the employer's negligence he would of necessity have had 
 recourse to the Federal liability statute. However, as there was no neg- 
 ligence, the injury being due to pure accident, it was not within the Federal 
 law, and the court held that it was* a case in which Congress had not yet 
 acted, so that the State law would control, and affirmed an award made 
 in the claimant's favor by the compensation commission. 
 
 Another statute that received consideration at the hands of the courts 
 this year was that of Texas, the court of civil appeals having held certain 
 provisions of the act unconstitutional (Middleton vs. Texas Power & Light 
 Co., 178 S. W. Rep. 956). The act authorizes the employer to choose 
 whether or not he will accept the provisions of the act, but having done so 
 his employes are deprived of any right of action against him for damages 
 for personal injuries, and are restricted to such relief as the statute in 
 question provides. The court held that this provision was void as in viola- 
 tion of the clauses of the Federal and State constitutions which guarantee 
 due process of law, and also of those clauses which forbid depriving any 
 person of the equal protection of the laws. It was further held that giving 
 the employer his choice as to the nature of the remedy which he would 
 permit his employes was in substance a delegation of legislative functions, 
 and void as an attempt to confer upon him powers belonging exclusively 
 to the legislature. The jurisdiction of this court is not final, and the case 
 has been taken to the supreme court of the State. 
 
 Has Proved Its Superiority 
 
 The operation of the principle of workmen's compensation has proved 
 its superiority over employers' liability from several standpoints. 
 
 First. The prevention of accidents. Ignorance of the machinery which 
 they operate, carelessness and recklessness in its operation, stand out in 
 any study of the causes of accidents. Personal equipment of the workman 
 for the task he performs is ofttimes overlooked and from loose, torn and 
 unsuitable clothing accidents result. Insufficient lighting and crowding of 
 machinery contribute their quoto to which must be added defective machin- 
 ery and lack of the use of proper safeguards. 
 
 Under the system of employers' liability in force in practically all 
 countries previous to the introduction of workmen's compensation, it was 
 the negligence of the employer that determined the right to recovery of 
 damage or compensation. This negligence had to be clearly shown and 
 while the more humane employers expended thought and money for the 
 prevention of accidents, the vast majority were content to make only slight 
 effort to minimize the number of accidents. With nearly every accident 
 entitled to compensation, the question of the number of accidents and their 
 severity become of financial importance and vast strides have made in the 
 methods and means used to prevent accidents. 
 
WORKMEN'S COMPENSATION LAW 63 
 
 Second. Elimination of waste. The system of employers' liability is 
 wasteful necessarily so. It is not always easy to determine whether an 
 employer has been negligent or not. With an automatic scale of compen- 
 sation operative on the occurrence of an accident, a large portion of the 
 expense of investigation, lawyers' fees and court costs are eliminated. 
 The saving is an important one. 
 
 Third. Immediate payment of the injured workman or his family. Under 
 employers' liability a considerable period usually elapses before payment 
 is made, and sometimes it is years before settlement is reached. The com- 
 pensation law provides for weekly payments or lump sum settlements. The 
 money is thus available at the time when most needed a blessing to the 
 injured workman or in case of his death, the widow and children. 
 
 Fourth. Diminishment of friction between employers and workmen. 
 The operation of employers' liability laws tends to develop friction and 
 ofttimes antagonism between employers and workmen. The injustice the 
 plan works in the distributon of compensation for accidental injuries, and 
 the fact that the workman must prove his case before payment is made, 
 is one more cause preventing harmonious relations between employer and 
 employe. Workmen's compensation with prompt settlements largely rem- 
 edies this evil. 
 
 Fifth. Equitable method of determining compensation. One of the 
 characteristics of workmen's compensation laws is the method of determin- 
 ing the compensation. A study of the scale of compensation shows (a) 
 the compensation is made to depend upon and vary with the wages; (b) it 
 is made to depend upon and vary with the extent of the injury. 
 
 Under employers' liability laws the damages or compensation assessed 
 by one jury for loss of eye or limb may and does differ radically from the 
 sum assessed by another jury for identically the same injury. Workmen's 
 compensation laws substitute a fixed known compensation for an unknown 
 variable compensation. 
 
 Sixth. The workman receives full compensation awarded him. Under 
 employers' liability there has grown up a class of lawyers known as "Am- 
 bulance Chasers," who take advantage of the unfortunate workman's neces- 
 sity and often receive exorbitant payment for any real or alleged services 
 rendered. With the fixed compensation payable at stated intervals pro- 
 vided under workmen's compensation laws the workman receives the full 
 amount due him. 
 
 Seventh. The cost to employer a part of cost of production. Under a 
 workman's compensation system nearly all accidents carry compensation, 
 nearly all employers insure their liability, and the payments to the in- 
 jured workman are with a certain degree of definiteness stated in the law. 
 Therefore, the speculative feature is largely eliminated, the soliciting ex- 
 pense is lessened, and the determination of rates more scientific and ac- 
 curate. The cost to the employer becomes a fixed charge upon the indus- 
 try, it enters into the cost of the commodity as one of the items of produc- 
 tion, and in the last analysis the burden is transferred to the consumer. 
 
 The fact has been established that there is a certain accident risk 
 attaching to industrial employments and principles of justice and humanity 
 
64 STATE DEPARTMENT OF LABOR 
 
 demand that the loss shall in no event fall wholly on the workman. Sta- 
 tistics show that a large percentage of accidents are not due to the negli- 
 gence or fault of the employer, or of the employe, but are due to inevitable 
 accidents connected with employment. The following table taken from the 
 official reports of Germany sums up the results of an inquiry as to question 
 of fault of 81,248 accidents compensated for the first time in 1907: 
 
 Accidents due to Per Cent 
 
 Fault of employer .*. 12.06 
 
 Fault of the workman 41.26 
 
 Fault of both employer and workman 91 
 
 Fault of fellow workman or third party 5.94 
 
 General hazard of the industry 37.65 
 
 Other causes (chance, etc.) 2.18 
 
 Under employers' liability laws, the greatest possible percentage of 
 accidents for which damages could be obtained would be 18.91, while prob- 
 ably less than that percentage would be chargeable for damages. 
 
 For the purpose of rendering some reasonable compensation on account 
 of the 80 per cent or more of accidents occurring in industrial establish- 
 ments not provided for under employers' liability, the principle of work- 
 men's compensation is substituted. 
 
 New Legislation 
 
 New compensation laws were enacted in 1914 in Kentucky, Louisiana, 
 Maryland and a New York statute of 1913 was re-enacted for the reason 
 that the previous enactment had taken place after the adoption of the 
 constitutional amendment, authorizing such a law, but prior to its coming 
 into effect. 
 
 The Kentucky statute was declared unconstitutional by a divided court 
 before it became operative. The court held that, although the act was 
 elective in form, the provision as to passive or presumed election on the 
 part of the employes and the abrogation of the defense of the employer 
 who rejected the provision of the act, made it compulsory, and as the act 
 thus constructed, limited the amount recoverable for damages for personal 
 injuries, it was unconstitutional in all parts. 
 
 During 1915, compensation laws were enacted in Alaska, Colorado, 
 Indiana, Maine, Montana, Oklahoma, Pennsylvania, Vermont and Wyoming. 
 There are now thirty-one statutes for compensation laws besides the ter- 
 ritories of Alaska and Hawaii, the Canal Zone, the Philippine Islands, and 
 the Federal law. The Oklahoma legislature submitted to the people an 
 amendment to the constitution, authorizing an elective or compulsory com- 
 pensation law covering death, as well as disability. The legislature of 
 Utah provides for a commission to report to the next legislature a sug- 
 gested bill. A compensation law passed by both houses of the Idaho legis- 
 lature was vetoed by the governor of that state. The Missouri commission 
 of 1913 recommended to the legislature a carefully drawn bill, but the 
 legislature of that state declined to enact a compensation law. 
 
WORKMEN'S COMPENSATION LAW 65 
 
 Numerous amendments were made to existing compensation laws 
 during 1914 and 1915. The changes made in some of the laws are so 
 extensive that it amounted to about an adoption of a new law in its en- 
 tirety. , The failure, thus far, to secure uniformity in compensation laws 
 is quite noticeable. The Oklahoma statute restricts its application to cases 
 of non-fatal acidents, while in Wyoming, all accidents, both for death and 
 disability, are in the form of lump sum settlements, arbitrarily fixed by the 
 statute without regard to the earning capacity of the injured person. 
 Practically all other compensation laws favor periodical payments, cal- 
 culated according to the wage loss. The benefits payable under the Alaska 
 statutes are similar in form to those of Wyoming, except for temporary 
 disability for which, in Alaska, payment, based on the percentage of the 
 wages, are allowed. The Alaska statute is more liberal than that of Wyom- 
 ing, the latter allowing a maximum of $2,050 for death and $3,000 for per- 
 manent disability, while in Alaska the total in either case may amount to 
 $6,000. The death benefit in the Colorado statute is next lowest to that 
 of Wyoming, being limited to a maximum of $2,500. The Colorado law also 
 prescribes a waiting time of three weeks before any benefits are payable, 
 in both these respects diverging from the tendency generally observable 
 to allow larger benefits and to reduce the waiting time to less than two 
 weeks. Disability benefits, in Colorado, continue until death if the dis- 
 ability is total and permanent. 
 
 Official boards or commissions for the administration of compensation 
 laws continue in favor, the laws of Alaska and Wyoming being the only 
 new laws enacted in 1915, which do not provide for a method of adminis- 
 tration. The Louisiana statute is administrated by the courts. The indus- 
 trial commission of Maine is limited in its powers to those relating to the 
 administration of the compensaton law. The same is true of the industrial 
 commissions of Maryland, Oklahoma and Vermont. In Hawaii, county 
 boards with restricted functions are provided for. The Pennsylvania law 
 creates a bureau of workmen's compensation in the State Department of 
 Labor which furnishes the clerical force for the workman's compensation 
 board, the board being the administration body proper, for the hearing, 
 investigation and determination of claims under the law. The industrial 
 commission of Colorado is charged, not only with the adminstration of the 
 compensation law, but also with the duties of factory and mine inspection^ 
 the enforcement of women and child labor laws and safety laws generally. 
 The same provisions are found in the law of Indiana, and that of Montana. 
 These same provisions were provided for in earlier laws enacted in Califor- 
 nia, Iowa and Texas. The compensation laws of New York, Ohio and Wis- 
 consin are in the hands of industrial commissions, and clothed with very 
 broad powers. 
 
 The following states have elective compensation laws: Alaska, Colorado, 
 Connecticut, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Michigan, 
 Minnesota, Montana, Nebraska, New Hampshire, New Jersey, Pennsylvania, 
 Rhode Island, Vermont and Wisconsin. The following states have adopted 
 compulsory compensation laws: California, Canal Zone, Hawaii, North Da- 
 kota, New York, Oklahoma and the Federal government. 
 
66 STATE DEPARTMENT OF LABOR 
 
 The following states have adopted compensation laws providing for 
 insurance, and elective in their nature: Missouri, Nevada, Oregon, Texas, 
 West Virginia. 
 
 The following states have adopted compensation laws with a provision 
 for insurance and compulsory in their nature: Ohio, Washington and Wyo- 
 ming. 
 
 Amending Legislation 
 
 Of the amendments adopted during 1914 and 1915 it may be said in 
 general that they relate to matters of administration or tend toward an 
 extension of the scope of the acts amended. Exceptions are the exclusion 
 of railroads from the scope of the law in Minnesota, and of domestic and 
 argicultural labor in Nevada. In Illinois an amendment permits the use of 
 the common-law defenses in suits against farmers and stock raisers. An 
 important change in the law of California consists of the substitution of the 
 word "injury" for the word "accident" throughout, the evident intent being 
 to permit the inclusion of disabilities not resulting from single acts of vio- 
 lence, as in cases of industrial disease. An act of the California legislature 
 of 1915 that may be mentioned in this connection is one that provides that 
 officers and members of the National Guard killed or injured while in the 
 service of the State shall be within the provisions of the compensation act. 
 
 The Connecticut statute provides for its presumptive acceptance only 
 in cases where there are five or more employes, instead of in cases as 
 formerly. Casual employes and outworkers are excluded from the benefits 
 of the act. Waiting time is reduced from two weeks to ten days, 
 and the levy of the sum of $750 for the expenses of the State compensation 
 commissioners where there are no dependents of a deceased workman is dis- 
 continued. Other amendments relate to the liability of third persons to 
 whose negligence injury is due, to giving of notice of accidents immediately 
 instead of within thirty days, to the readjustment of benefit payments 
 among other beneficiaries, giving power to a commissioner to review an 
 award on his own initiative as well as at the instance of the parties, etc. 
 
 In Illinois, the minimum death benefit was increased from $1,500 to 
 $1,650, and the minimum weekly disability payment from $5 to $6. A 
 number of changes relate to details of administration. The law now provides 
 for a review of decisions of the board by the circuit courts instead of by 
 the supreme court only, this restriction having been held unconstitutional. 
 
 The Massachusetts statute was amended in 1914 and 1915, the most 
 important changes being the increase of benefits, the basis being raised from 
 one-half to two-thirds of the wages, the maximum amount for total dis- 
 ability increased from $3,000 to $4,000, and the limit of term of payments 
 for partial disability extended from three hundred to five hundred weeks. 
 Other changes relate to questions of dependents, the discretionary payments 
 of partial lump-sum awards to permanently disabled minors, the securing 
 of evidence from absentees by the use of depositions or letters rogatory, 
 arbitration of disputes, the review of awards, the organization of the State 
 employes' insurance association, etc. The directors of the insurance asso- 
 
WORKMEN'S COMPENSATION LAW 67 
 
 ciation are to be elected by ballot of the members instead of being ap- 
 pointed by the governor, as originally provided. Branch offices of the indus- 
 trial accident board in not more than four cities of the State may be estab- 
 lished, and the appointment of a medical adviser is authorized. 
 
 Amendments to the Michigan law authorize the appointment of two 
 deputy commissioners to assist in the* administration of the act, and give 
 the State commissioner of insurance power to administer medical and hos- 
 pital benefits through the State accident fund, the same as other benefits. 
 Part 5 of the act, relating to the administration of the State fund by the 
 commissioner of insurance, was amended in several respects, one change 
 authorizing the levying of sufficient premiums or assessments on the em- 
 ployers insured to meet the expenses of the administration of the fund. 
 The standing appropriation for the expenses of the industrial accident board 
 is increased from $40,000 to $45,000. Other laws relating to adjusters of 
 claims for compensation and to the classification of risks by insurance com- 
 panies were also enacted. 
 
 In Minnesota, all common carriers by steam railroad are exempted 
 from the operations of the act, instead of only when engaged in interstate 
 commerce. A special liability law was enacted for railroads. Provision 
 was made for the payment of funeral expenses by the employer in cases 
 of fatal accidents, the amount not to exceed $100. The weekly benefits 
 payable were changed from $6 minimum and $10 maximum to $6.50 mini- 
 mum and $11 maximum. In cases of permanent total disability not more 
 than $6.50 per week is to be paid for one hundred and fifty weeks after the 
 expiration of the four hundred weeks of full benefits originally provided 
 for, the total not to exceed $5,000. The schedule of partial disabilities was 
 amended, adding loss of hearing and a number of combined injuries thereto. 
 Other amendments relate to dependents, the distribution of death benefits, 
 charges for medical, etc., aid, the limitations of actions, the duty of phy- 
 sicians to testify, payment to non-resident alien beneficiaries, the insurance 
 of risks, etc. 
 
 Very considerable changes were made in the statute of Nevada, the 
 scope of the law being extended by disregarding the number of employes. 
 The waiting time is reduced from two weeks to one week, and if disability 
 continues for three weeks or longer, payments date from the time of the 
 injury. Reasonable medical and surgical aid is to be furnished by the 
 employer for a period of not more than four months; employes may be 
 called upon to contribute $1 per month for this purpose. The schedule of 
 payments to dependents was revised, the maximum amount payable was 
 advanced from $5,000 to $6,000. Payments to non-resident alien benefi- 
 ciaries are especially provided for. Election to accept the act is presumed 
 in the absence of notice of rejection, but the rejection was valid for but 
 one year unless renewed, as the act originally provided; by amendment, 
 rejections once made continue in force until waiver thereof, which action 
 may be taken at any time. The industrial commission, instead of consist- 
 ing of five members, three of whom are exofficio, is to consist of three 
 members, appointed by a board made up of the governor, the attorney 
 general, and the inspector of mines. Provision is made for the reduction 
 
68 STATE DEPARTMENT OF LABOR 
 
 or suspension of benefit payments to injured persons who refuse reasonably 
 essential medical or surgical treatment, or persist in insanitary or injurious 
 practices which tend to imperil or retard recovery. Forfeiture of compen- 
 sation is to follow conviction of fraud or misrepresentation. Other amend- 
 ments relate to the maintenance, investment, etc., of the State insurance 
 fund, injuries outside the state, etc. 
 
 The New Jersey statute was amended in 1914 by requiring burial 
 expenses to be paid in all cases, instead of only in cases where no other 
 death benefits were payable. 
 
 The law of New York was amended in 1914 so as to include employes 
 on public works, instead of excluding them. Other amendments relate to 
 pleadings in suits where the employer has failed to guarantee payments 
 under the act, to penalties for failure to provide such guaranty, to the 
 increase of a child's share in case of the death of a surviving parent during 
 the compensation term, and to the consideration of public pension systems 
 in determining benefits payable. The legislature of 1915 made several 
 amendments, principal among them being the permission of direct agree- 
 ments between the employer and employe, subject, however, to the approval 
 of the industrial commission; a provision for advances by the employer 
 prior to any final agreement, and one for penalties in case of negligent 
 or intentional default in compensation payments. The administration of 
 the act now devolves upon the industrial commission of the State, the 
 workmen's compensation commission having been abolished and its func- 
 tions conferred upon the new commission. 
 
 The Ohio statute was amended at the first extra session of 1914 by 
 defining the term "willful act" as used in the law to mean one done know- 
 ingly and purposely with the direct object of injuring another a restricted 
 definition that was rejected by a Federal court in a case decided prior to 
 the enactment of this amendment. At the second special session it was 
 provided that counties might omit an annual tax accounting in any year 
 following a report by the industrial commission that sufficient funds are 
 in hand. Amendments in 1915 relate to the making of the annual reports 
 by the commission. 
 
 The amendments of the law of Oregon consist of changes in the section 
 classifying industries and establishing premium rates, among other things 
 fixing the employes' contributions at one cent for each day or part of day 
 worked, instead of a percentage of the earnings and at least twenty-five 
 cents per month; provisions for adjusting premium rates on a basis of 
 experience and for determining rates for employers not enumerated in 
 the act but desiring to come within its provisions. Instead of permitting 
 suits for damages against employers failing to comply with safety laws, 
 the offending employers are to be prosecuted by the industrial accident 
 commission of the State. 
 
 Besides enacting a compensation law and related acts, the legislature 
 of Pennsylvania affected the second adoption of a resolution for an 
 amendment to the State constitution, which, if adopted, will permit the 
 enactment of a compulsory compensation law. This will be voted upon at 
 the regular election in November of this year. 
 
WORKMEN'S COMPENSATION LAW 69 
 
 The Rhode Island statute is amended so as to require the employer to 
 insure, to give proof of financial ability to make payments directly, or to 
 give satisfactory security or bond to protect payments that may fall due. 
 Insurance policies must inure to the direct benefit of claimants, and 
 beneficiaries have a first lien on any sums due employers from the insuring 
 company. Other amendments provide for the reporting of accidents 
 and fix the method of ascertaining average weekly wages, etc. 
 
 The amendments to the Washington statute were not so extensive as 
 in some states, the premium rate for iron and steel construction work being 
 changed from 8 to G 1 /^ per cent, the provision as to initial or preliminary 
 payments modified, also those relating to readjustment of classes and 
 funds and to defaulting employers. Physicians who have examined or 
 treated claimants are required to testify as to such examination or treat- 
 ment in proceedings relating to claims, and persistence by claimants 
 in insanitary and injurious practices or refusing reasonably essential 
 medical or surgical treatment may reduce or suspend compensation pay- 
 ments. 
 
 Changes in the statute of West Virginia provide for a compensation 
 commissioner to administer the act in lieu of administration by the pubilc 
 service commission of the State as originally arrranged for. The costs 
 of administering the fund, including salaries, fees for official bonds, etc., 
 are to be paid out of the fund itself, instead of being met by the State 
 as formerly. Numerous changes in detail were made, and the minimum 
 and maximum limits of weekly benefits were raised from $3 to $4 and $6 to 
 $8, respectively. Payments for disability are one-half the wages for various 
 periods according to degree of disability, a disability of 85 per cent or 
 above calling for payments for life. Death benefits are specific weekly 
 or monthly sums for the different classes of dependents, payments to 
 children ceasing when they attain the age of fifteen years. Medical and 
 surgical costs may in special cases be increased to $300. The establishment 
 of a surplus fund on a specified basis and an annual readjustment of 
 premium rates (which are fixed by the commissioner) are provided for. 
 Employers may act as self -insurers, but must do so in accordance with rules 
 prescribed by the compensation commissioner and must give bond for the 
 payment of benefits that may fall due. Special provision is made for the 
 proof of claims in cases of hernia. 
 
 The Wisconsin statute was amended so as to provide for dependent 
 children in case of divorce of the parents, also for a divorced spouse who 
 has not remarried. 
 
 The Federal Congress extended the benefits provided by earlier laws 
 for railway mail and sea-post clerks, so as to include city and rural letter 
 carriers and special-delivery messengers; while in executive order ex- 
 tended the application of the act of May 30, 1908, to work on or in con- 
 nection with the federal railway construction in Alaska. 
 
 Mutual Insurance Companies 
 
 The insurance of the employers' risk under the compensation laws 
 is the subject of various forms of treatment, as appears from the fact 
 
70 STATE DEPARTMENT OF LABOR 
 
 that some of the State compensation laws are in themselves insurance 
 laws, others require some form of insurance without specifying its type, 
 while still others leave the matter entirely to the initiative and choice of 
 the persons interested. Stock companies writing employers' liability in- 
 surance under the old laws naturally extend their activities to cover the 
 obligations imposed by the compensation legislation; and both by provision 
 of law and by a natural growth to meet new conditions, the question of 
 the formation of mutual companies* came into increased prominence. In 
 some states the compensation acts themselves contain provisions covering 
 this subject, while special acts regulating the formation of such companies 
 have been passed in several others, and while they are not strictly parts 
 of the compensation laws, they are so closely related to their operations 
 that they should be considered in a discussion of compensation legislation. 
 
 Among the States having laws on this subject are New York, Califor- 
 nia, Colorado, Illinois, Indiana, Maryland, Massachusetts, Michigan, Minne- 
 sota, Nebraska, New Hampshire, Oklahoma, Pennsylvania, and Texas. 
 
 The law of California requires five incorporators and not less than 
 five nor more than eleven directors. Business may be begun with one 
 hundred subscribers having not less than one thousand employes in the 
 aggregate. The state insurance commissioner may limit the membership 
 of any company to persons engaged in the same general character of 
 industry or residing within a limited part of the state. The term of the 
 corporation may not exceed fifty years. Premium rates may not be less 
 than those fixed by the state workmen's compensation rating bureau. 
 
 Under the Colorado statute fifteen or more employers, individual or 
 corporate, may associate to write mutual insurance. Business may not be 
 begun until at least twenty employers with not less than 2,500 employes 
 apply for and agree in writing to take insurance* and until such applica- 
 tions and agreements are properly authenticated to the commissioner of 
 insurance. In special cases, where the hazard is comparatively slight, the 
 number of employes may be reduced but must be above 1,000. Members 
 have one vote for each 500 employes, or major fraction thereof, but no 
 member may have more than twenty votes. Directors make classifica- 
 tions and fix premium rates and may allow for merit rating; they may 
 also maintain separate funds and rates for diffierent employments. 
 
 In Illinois, not less than twenty persons may form mutual associations 
 and may begin business with the simultaneous issue of at least twenty 
 policies to twenty members covering the same kind of insurance upon not 
 less than 200 separate risks. No maximum single risk may exceed 20 per 
 cent of its admitted assets, or three times the average policy, or 1 per cent 
 of the insurance in force, whichever is the greater. Not more than $25,000 
 admitted assets is required, and at least 1,500 employes must be covered, 
 each employe being considered a separate risk. Policyholders must be 
 members of the corporation and are entitled to votes in accordance with the 
 insurance in force, the number of policies held, or the amount of premium 
 paid, as may be provided by the by-laws. 
 
 The Indiana statute requires at least twenty incorporators and con- 
 tains similar provisions as to initial issue of policies, maximum single 
 
WORKMEN'S COMPENSATION LAW 71 
 
 risks, and the amount of admitted assets and number of employes as appear 
 in the Illinois statute; provisions as to voting are also similar. 
 
 The Maryland statute calls for at least nine directors and twenty sub- 
 scribers, with 2,000 employes as a minimum for the commencement of 
 business. Members have one vote for each 500 employes or major fraction 
 thereof but not more than ten votes in all. If employes contribute to the 
 insurance fund, they are to have an equal voting power with the employers. 
 
 In Massachusetts ten or more persons may form a mutual company, 
 but no policy may be issued until applications for insurance in an amount 
 not less than $50,000 have been received, or applications by not less than 
 100 employers having not less than 5,000 employes, each employer obliga- 
 ting himself in an amount not less than five times his cash premium, which 
 may be called upon in emergency, or they may give bond in an amount of 
 $100,000 to meet such emergencies; a fund of $50,000 in cash deposited 
 with a trustee may be substituted for the bond. In any case provision 
 must be made for extraordinary losses caused by disasters. In general, 
 corporations of this class are subject to the provisions of the corporation 
 laws of the State. 
 
 The law of Michigan requires five incorporators and provides for a 
 discretionary restriction to groups of employers engaged in operations of 
 the same general character. At least 5,000 employes must be represented. 
 The term of the corporation may not exceed thirty years. In fixing pre- 
 mium rates the board of directors may take into account the safety con- 
 ditions of the plants of the respective subscribers. The law of 1915 author- 
 izes any mutual company, organized in the state or elsewhere, to write 
 liability insurance if possessed of net cash assets in an amount of $500,000. 
 
 In Minnesota, twenty incorporators are required, and business may be 
 begun only when there are at least 5,000 employes covered. A proviso as 
 to companies insuring creameries and cheese factories only allows them 
 to operate if there are 300 employers covered, the number of subscribers 
 being not less than 200. This act requires a statement in each policy of the 
 maximum contingent liability of the holder. The life of the corporation 
 is limited to thirty years. 
 
 Twenty employers with 5,000 employes may incorporate in Nebraska, 
 and the charter may be perpetual. Subscribers may cast one vote for each 
 $100 premium or fraction thereof paid during the preceding calendar year. 
 
 The New Hampshire law authorizes the incorporation of twenty or 
 more employers with not less than 5,000 employes. The general corpora- 
 tion law applies where not inconsistent with the present act. One vote 
 is allowed for each $100 or fraction thereof paid in premiums, no per- 
 son to be allowed more than twenty votes. Directors may inspect plants, 
 prescribe safety rules and regulations, and examine books and * pay 
 rolls. Merit rating is permissible, and a reserve as required by the insur- 
 ance commissioner of the State must be provided. Groups of industries 
 and separate funds may be maintained, but all funds are ultimately avail- 
 able to meet losses when necessary. 
 
 The Oklahoma statute is identical with that of Illinois in the points 
 noted. The premium rates to be charged by mutual companies, as by 
 
72 STATE DEPARTMENT OF LABOR 
 
 "every insurance company granting insurance against liability of em- 
 ployers," are subject to revision by the state insurance board if found 
 unreasonably high or inadequate. 
 
 The Pennsylvania law requires twenty or more employers with not less 
 than 5,000 employes who have accepted the elective compensation system 
 of the state, though in case of agricultural employment, not less than 200 
 employers and 500 employes are required. The same provision as to voting, 
 inspection, premiums, groups, funds, and ultimate collective liability as 
 appears in the New Hampshire law is in force in this state. A surplus 
 may be established to cover catastrophe hazards. 
 
 The Texas statute differs considerably from other laws of this class 
 and authorizes subscribers "to exchange reciprocal or insurance contracts 
 with each other" at an office designated in the application for such author- 
 ity. Not less than seventy-five employers with 2,000 employes must apply 
 and must place on deposit at least $10,000 for the payment of losses, and 
 the reserve fund must be retained at this amount as a minimum. The 
 insurance contracts must amount to not less than $500,000, and no 
 employer may assume a risk in excess of 10 per cent of his net worth as 
 shown by a reputable commercial rating agency. 
 
 Applicable to the above forms of insurance companies, and to all 
 other operations in the field, including the state fund, are the provisions 
 of a statute of California which requires every such company to file with 
 the state insurance commissioner its .classification of risks and premium 
 rates, together with its list of schedule or merit rating. After hearings the 
 commissioner is to fix a uniform classification of risks and premium rates, 
 and may also establish a uniform system of merit rating; no insurance may 
 be carried at less than the established rates. The statistical and actuarial 
 data compiled by the state's industrial accident commission and compen- 
 sation insurance fund are to be at the disposal of the insurance commissioner 
 for the purposes above set forth. 
 
 The purpose of insuring the risk of work accidents from the employer's 
 point of view is to shift the cost of these accidents, and to save the em- 
 ployer from possible bankruptcy through a catastrophe which might result 
 in wiping out his industry through several serious accidents causing the 
 payment of compensation in an amount beyond the capitalization of the 
 industry. The Nebraska compensation law provides that awards under 
 the law, without limit as to amount, shall have the same preference 
 against the assets of the employer as unpaid wages for labor performed. 
 From the employe's point of view insurance of the risk is necessary to 
 protect the employe against the possible insolvency of the employer, espe- 
 cially in view of the fact that many of the compensation payments con- 
 tinue out over a period of many weeks, the maximum number being for 
 permanent total disability, which continues during the life of the injured 
 employe. 
 
 The Nebraska law needs amending in such manner as each employer 
 must either insure his risk or satisfy some competent board or commission 
 or individual that he is solvent and that he will continue to be solvent over 
 
WORKMEN'S COMPENSATION LAW 73 
 
 the period of time for which he may be subjected to the payment of com- 
 pensation to an injured employe. 
 
 The Nebraska law provides that all employers of five or more are 
 presumed to be under the law unless an election to the contrary has been 
 filed with the state insurance commissioner. To require an employer to take 
 out insurance or qualify as to solvency before he could come under the 
 law would change the method of election, in that the employer would elect 
 to come under the law when he had complied with the requirements as to 
 insuring his risk or had his solvency passed upon. 
 
 The Nebraska law was made an elective law on the theory advanced 
 by learned counsel that under the Nebraska constitution one could not be 
 required to respond in damages where there was no fault. There are a 
 number of able members of the bar who do not take this view of the power 
 conferred upon the people by the constitution. The safer way, in order 
 to avoid litigation and possible adverse rulings by the supreme court, would 
 be to amend the constitution, plainly empowering the people with author- 
 ity to adopt a compulsory compensation law. Then the matter of requiring 
 an employer to insure his risk and protect his employes against insolvency 
 could be made a part of the compensation law and not affect the applica- 
 tion of the law to the larger number of employers of the state. 
 
74 
 
 STATE DEPARTMENT OF LABOR 
 
 SAFETY 
 FIRST 
 
 Common and Other Causes of Accidents 
 
 One delusion is passing away, in the campaign to prevent industrial accidents 
 that every industry has its own peculiar set of accident causes and that practically 
 all the accidents result from those causes. One industry that is quite different from 
 the ordinary run of manufacturing plants is the electric light and power industry. 
 Yet the safety engineer of an electrical company wrote recently to Safety Engineer- 
 ing : 
 
 "One of the distinctive features of accident statistics in central stations is the 
 relatively low rank that electricity itself holds among the causes of accidents. The 
 returns from the companies generating electricity for commercial purposes show 
 that approximately 15 per cent of the accidents to their employes are due purely to 
 electricity. The remaining 85 per cent are due to causes common to all classes of 
 industries, such as falls, falling objects and other similar sources of injury." 
 
 If 85 per cent of the accidents in central stations are due to "cause common to 
 all classes of industries," it way be inferred that most of the accidents in manufac- 
 turing plants are due to common causes. Safety work means taking care of all 
 common causes of accidents which includes carelessness of workmen, elimination of 
 chance-takers and the inculcation of the safety habit. 
 
WORKMEN'S COMPENSATION LAW 75 
 
 A Gallery of Injured Employes 
 
 The following pages show a few pictures which will represent differ- 
 ent conditions under which accidents have happened, and the lessons which 
 may be learned from each case. 
 
 The increasing danger to life and limb involved in the pursuit of indus- 
 trial occupations has become so great that the necessity of doing every- 
 thing feasible to keep it within the narrowest possible limits is clearly 
 evident. We are living in a constructive era. Articles are being manu- 
 factured in greater number and variety than ever before in the world's 
 history. More and more machinery is constantly being used, and more 
 and more persons are being employed in factories, mills, and workshops. 
 
 The toll of human life and limb being exacted by modern industry 
 has reached such startling proportions as to be a serious menace to our 
 national welfare. That it is so recognized is evidenced by the increasing 
 number of laws made to protect life and health, and the marked tendency 
 shown to fix the legal responsibility for accidents. 
 
 Investigation into the causes of this drain upon our national vitality 
 has proved conclusively that a very large percentage of industrial accidents 
 can be avoided by the adoption of proper preventive measures. From the 
 nature of the case, it is plain that, although the employer and employe 
 must work together to attain the desired end of reducing accidents to a 
 minimum, the initiative should come from the employer. 
 
 Ignorance can never be entirely overcome in many instances, and it is 
 certainly not the duty of the employer to undertake the general education 
 of his employes. He can do much, however, to prevent ignorance from 
 contributing to the causing of accidents in his plants. He can see to it 
 that no man is allowed to handle or work about any machinery unless he is 
 qualified to do so. He can prevent a workman familiar with one job, and 
 specially trained, for it, being allowed to undertake other work in which his 
 ignorance is apt to cause injury to himself, if not to others. He can exer- 
 cise discrimination in the assignment of work, so as to avoid putting a man 
 of slow-moving mind and heavy body on a job for which quickness of 
 mental action and physical agility are necessary. 
 
 He can formulate rules showing how work should be done to assure 
 the largest degree of safety possible, and he can furnish copies of these 
 rules to all his employes, printed in as many languages as may be necessary 
 to convey their meaning to all concerned. He can also make prominent 
 display of caution signs warning his men what not to do in order to avoid 
 danger. It is astonishing how ignorant many workmen are, not only of 
 mechanical arrangements in use in factories, but of palpably dangerous 
 general conditions and the necessity of exercising ordinary care to avoid 
 being hurt. It is equally astonishing how large a part native curiosity 
 plays in the causing of accidents. 
 
76 
 
 STATE DEPARTMENT OF LABOR 
 
 Arm Caught in Gear 
 
 This inexperienced workman was 
 injured while removing a lap of waste 
 from around the shaft under the head 
 of a doubler by reason of getting 
 his arm caught in a gear. 
 
 As a result of the accident, he 
 suffered two fractures of the right 
 arm, a severe crushing of the elbow, 
 and multiple bruises and lacerations 
 of the arm. 
 
 This type of injury illustrates the 
 importance of thoroughly guarding 
 gears, and also the importance of in- 
 structing inexperienced and ignorant 
 employes of the dangers to be avoided 
 in working around machinery. The 
 injury is such that this man is pre- 
 vented from ever advancing to any 
 considerable extent, and if the em- 
 ployer should in the future be unable 
 to keep him employed he is severely handicapped in finding work which he 
 can do. 
 
 The Work of a Circular Saw 
 
 This employe, a boy of nineteen years, worked as a sawyer in a por- 
 
 table sawmill owned by his father. 
 
 While standing on a wooden platform, 
 sawing dry pine logs with a 52-inch 
 circular saw, he placed his right hand 
 against the smooth surface of the 
 saw to see whether or not it was 
 overheated. His hand was drawn in 
 between the side of the saw and a 
 board on top of the saw-frame, and 
 held fast. In an effort to release his 
 hand he slipped to the floor of the 
 platform, and fell upon the revolv- 
 ing saw. 
 
 The installation of practical 
 safety devices is the only efficient 
 method of lessening the injuries in- 
 cidental to this kind of employment. 
 The use of rubber mats or strips, 
 which are safeguards against slipping 
 upon floors or platforms, might have 
 saved this employe from serious in- 
 jury. 
 
WORKMEN'S COMPENSATION LAW 
 
 77 
 
 Building Wrecker Injured 
 
 While lighting gasoline torches 
 with matches instead of tapers the 
 gasoline-soaked cotton gloves which 
 this employe wore became ignited, and 
 he suffered severe burns of both hands 
 and arms. An operation for the 
 grafting of new skin and two opera- 
 tions for the purpose of loosening the 
 skin on the right thumb for the pur- 
 pose of getting better flexion, kept 
 him in the hospital for a period of 
 eight weeks. 
 
 The use of a long wax taper 
 might have enabled this employe to 
 be out of the range of the flames and 
 thus prevented the injury. 
 
 Severe Electrical Burns 
 
 This employe, a carpenter, was en- 
 gaged in making measurments on tem- 
 porary partitions when the rule which 
 he held in his hand came in contact 
 with high voltage electric wire cables, 
 his head at the same time brushing 
 against an iron beam, making a 
 ground for the current. Injuries re- 
 sulted which necessitated the amputa- 
 tion of his hand above the wrist, and 
 :he insertion of a silver plate in his 
 jkull. 
 
 Proper signals "Danger," "Don't 
 touch," etc. at the point of danger 
 would have warned the workman of 
 danger, and in all probability have 
 prevented the accident. 
 
78 
 
 STATE DEPARTMENT OF LABOR 
 
 Lineman Receives Serious Injury 
 
 This employe, while at work on 
 a pole teeing in wire slipped striking 
 the left side of his face against a pri- 
 mary wire, and his left wrist against 
 another, resulting in serious burns 
 which disfigured his face and necessi- 
 tated the amputation of his arm be- 
 low the elbow. He was working at 
 such a height that the injury might 
 have proved fatal had he not been 
 lowered to the ground. 
 
 This injury strikingly illustrates 
 the need of a lineman's shield in ev- 
 ery case where contact with live wires 
 is likely, and the necessity of wear- 
 ing rubber gloves which extend over 
 the wrists of the workman. When- 
 ever the nature of the lineman's work 
 will permit, rubbers should also be 
 worn. By strict adherence to these 
 precautions many similar injuries could be avoided. 
 
 Inexperienced Foreigner Receives Serious Injury 
 
 This employe, an inexperienced 
 foreigner, was picking cotton from 
 back of lap, while the machine was in 
 motion. His fingers were caught under- 
 neath, between the lap and the calen- 
 der roll, the result, as shown in the 
 illustration, being substantially the 
 loss of the use of the hand. He was 
 employed as a double-tender in a yarn 
 mill, and received a weekly wage of 
 $6.35. Injuries under such circum- 
 stances, generally due to the inexper- 
 ience and lack of knowledge in the use 
 and operation of machinery, occur fre- 
 quently. Instructions, when given, 
 should be fully and thoroughly under- 
 stood by the operator. "Things not 
 to do" should be pointed out, and rigid 
 discipline enforced. 
 
WORKMEN'S COMPENSATION LAW 
 
 79 
 
 Hand Caught in Machine 
 
 While engaged at his regular em- 
 ployment as a power-shear operator, 
 this employe neglected to ' use the 
 metal strip or templet provided. His 
 fingers were caught under the des- 
 cending blade of the machine and were 
 severed as shown. 
 
 This injury indicates the impor- 
 tance of safeguarding machinery and 
 placing the safety-control device with- 
 in easy reach of the operator. Many 
 effective appliances may be devised to 
 protect employes from this type of 
 machinery. In connection with this 
 injury the point is also illustrated that 
 not only should safeguards be pro- 
 vided, but employes should be edu- 
 cated and compelled to use the guards. 
 
 Falls From Ladders 
 
 Falls from ladders cause many 
 serious accidents. Material should 
 never be carried in the hands while 
 going up or down a ladder. Place 
 the ladder so it will not slip. If nec- 
 essary have someone hold the ladder. 
 Examine the ladder thoroughly before 
 using. Don't use it if it isn't per- 
 fectly safe. Don't lean ladders against 
 windows or any other insecure sup- 
 port. Don't walk or work under 
 ladders. Should this man fall, it 
 would be hard to convince him that it 
 wasn't due due to his usual "bum 
 luck." Do not go up or down a ladder 
 without fre e use of both hands. Use 
 a rope to carry material. 
 
80 
 
 STATE DEPARTMENT OF LABOR 
 
 Carrying the Injured 
 
 In using a stretcher shoulder straps should rest evenly over the 
 shoulders behind the collar. Bearers should not keep step so as to prevent 
 motion of stretcher. Raise and lower stretcher gently. Extra man to open 
 and close doors and remove obstacles. 
 
 Methods suggested for use when no stretcher is available: 
 
 1. Form chair by grasping wrists. 
 
 2. Similar method with arm forming a support for injured employe's 
 back. 
 
 3. How the injured employe may be carried, with a degree of comfort 
 and ease. 
 
WORKMEN'S COMPENSATION LAW 
 
 81 
 
 1 First Aid" Suggestions 
 
 By James D. Case, M. D., State Health Inspector 
 
 A few words concerning first aid and necessary dressings is fitting. 
 There are many injuries that entail danger to the injured party or termin- 
 ate in permanent disabilities because the necessary first aid equipment is 
 not at hand or, if so, no one present sufficiently capable of rendering first 
 aid to the injured. "Safety First" is always pertinent. 
 
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 I 
 
 Method of applying splints 
 in case of fracture to upper 
 arm. The splints are padded 
 with cotton, and are then 
 held in place by bandages as 
 shown. A sling is impro- 
 vised for holding the in- 
 jured's wrist in comfortable 
 position. A fracture is the 
 same as a broken bone. Get 
 a surgeon. Don't move the 
 patient unless you have to. 
 In any event first put on a 
 temporary splint. Ends of a 
 broken bone are sharp and 
 if the ends are moved there 
 is danger of cutting blood 
 vessels, or even the skin. If 
 end of bone sticks through 
 skin cover wound with gauze 
 and wait for surgeon. 
 
 It is also important to remember that a mere knowledge of first aid, 
 invaluable as it is, does not in any way replace the need of a competent 
 physician. The laity is not supposed to be able to foretell the seriousness 
 or ultimate result of accidents that may occur. Do not hesitate to summon 
 a capable physician in any and all cases that may prove to be of a serious 
 
82 
 
 STATE DEPARTMENT OF LABOR 
 
 nature. It is better to be temporarily criticised for over-precaution than 
 
 to be forever blamed for obvious neglect. 
 
 The following suggestions, we believe, are worthy of consideration: 
 
 1. Every industry where persons are employed and subject to injury 
 
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 should carry a few first aid articles, kept in a clean dust-proof box. 
 a small box, the following supplies are suggested: 
 
 a. Small glass or rubber stoppered bottle of tincture of iodine. 
 
 b. Small bottle of spirits of ammonia. 
 
 c. A few one-yard packages of plain sterile gauze. 
 
 For 
 
WORKMEN'S COMPENSATION LAW 
 
 83 
 
 d. Assorted roller gauze bandages, one to two-inch widths and five 
 yards long. 
 
 e. A few muslin roller bandages for tourniquets, etc. 
 
 f. Spool of adhesive plaster, one-inch width. 
 
 g. Bottle of 10 per cent argyrol solution and dropper for instilling 
 into the eye after removal of a foreign body. 
 
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 There are four chief things to do in case of injury: First, check hem- 
 orrhage; second, apply sterile dressing and bandage to wound; third, put 
 patient at rest; fourth, call a physician. 
 
84 
 
 STATE DEPARTMENT OF LABOR 
 
 If hemorrhage is from a limb, it may be checked with a tourniquet 
 made by tieing loosely a piece of muslin bandage above the injury and 
 then inserting a stick through the loop and twisting the bandage, using 
 only sufficient pressure to check the bleeding. If the bleeding is from the 
 body, place over the wound a heavy pad of sterile gauze and bandage 
 tightly. Never attempt to check bleeding by the application of soot, chew- 
 ing tobacco, flour, etc. All dressings should be taken from a new sterile 
 
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 package, otherwise germs will be carried to the wound and infection (blood 
 poison) result, which may even prove fatal. Never touch a wound with 
 dirty fingers and do not wash a wound the water is not germ free. 
 
WORKMEN'S COMPENSATION LAW 
 
 85 
 
 Fractures Straighten with as little manipulation as possible and hold 
 the broken limb in that position with some sort of splint, having the limb 
 in the position most comfortable to the injured party. If it is a broken 
 arm, place the forearm across the chest and bandage the whole arm tightly 
 to the body. If a leg, pad two sticks by wrapping them in cloth and bind 
 one on either side of the leg to act as splints and then tie the broken leg 
 to the good one this gives additional splint to the leg and comfort to the 
 patient. In all such cases, summon a physician. If the limb is wounded 
 or a bone protrudes, cover the wound with sterile dressing. Never put 
 any dirty object over a wound. 
 
 Foreign Bodies in the Eye These should be carefully removed; do not 
 rub the eye, for if the cornea is injured an ulcer is likely to result, with a 
 partial or even complete loss of vision. After removing the foreign body, 
 
 Method of turning up 
 upper lid of eye to search for 
 or to remove particle from 
 inner surface of lid. First 
 grasp eye lashes of upper lid 
 and pull downward and for- 
 ward. Place handle of pen- 
 holder or similar object 
 across outer surface of lid 
 and turn lid up over pen- 
 holder. If the substance can 
 not be easily removed go to 
 a doctor immediately. Don't 
 let anyone use an instrument 
 save the surgeon. Otherwise 
 there may be blindness in- 
 duced by infection. 
 
 put a few drops of 10 per cent argyrol solution in the eye to prevent in- 
 fection. If the particle is not loose in the eye, send the party to a doctor. 
 Electric Shock If the party is still in contact with the live wire, don't 
 grip hold of him to pull him free, for the current in that case would also 
 shock the rescuing party. Pick up a board or long stick (wood does not 
 conduct electricity) and shove and hold his body away from the wire. Per- 
 form artificial respiration unceasingly and, if the party can swallow, give 
 
86 STATE DEPARTMENT OF LABOR 
 
 stimulants. In all cases of electric shock, secure the services of a capable 
 physician as early as possible. 
 
 To Perform Artificial Respiration Place the patient on his back with 
 shoulders slightly elevated by a folded coat. Grasp his tongue, using a 
 handkerchief to keep it from slipping from the grasp and pull it forward 
 after wiping mucus from the mouth and nose. The tongue should be 
 held forward by an assistant or by forcing a pencil behind the last teeth 
 and over the tongue; kneel behind the patient's head, facing his feet; grasp 
 his forearms just below the elbows and press them forcefully against the 
 sides of his chest to expel the air from his lungs; then draw the arm' 
 upward and backward, extending his body, thus allowing the chest to ex- 
 pand and the air to enter. Do this about fifteen times per minute until 
 respirations become voluntary or life is proven extinct. Usually the effort 
 is continued for at least an hour. Ammonia held to the nose and slapping 
 the body alternately with towels wrung out of hot and cold water may aid. 
 
 Fainting Fainting is due to a lack of blood supply to the brain. In 
 treating a patient who has fainted, lay him on his back on the floor, or 
 if possible, have the head a little lower than the body. Sprinkle cold water 
 over the face and, if necessary, put some spirits of ammonia on a handker- 
 chief and hold to his nose. This is usually all that is necessary. 
 
 Drowning Remove water from lungs by placing the party face down- 
 ward with a coat folded and placed under his chest. Get astride his body 
 and press on the back to force out the water; put your hands under the 
 abdomen and lift up the body with the head hanging down so the water 
 will run out; then apply artificial respiration and send for a pulmotor, 
 if there is one available. Remove the wet clothes and apply hot blankets 
 to the body. After respiration is established, put the patient to bed and 
 and keep him wrapped in hot blankets with hot water bottles to the feet. 
 
 Burns and Scalds Here the greatest element to combat is usually pain. 
 The main object is to exclude the air, thus lessening the pain. Immerse the 
 part in water, cover with sterile gauze, then apply an abundance of cotton 
 and bandage snugly to exclude the air and send the workman to a physician 
 for proper medical attention. 
 
 Cuts, Punctures and Scratches The surrounding parts should be 
 painted with tincture of iodine and a sterile dressing bandaged over the 
 injury. Minor injuries such as produced by splinters, scratches, abrasions, 
 etc., should be immediately reported to the foreman who should paint them 
 with iodine and apply a dressing. Neglect in these cases is often the cause 
 of serious infection. 
 
 Infections (Blood Poison) Infection frequently is the result of unintel- 
 ligent treatment or of neglect. Unboiled water is as potent a carrier of 
 germs as a dirty cloth or dirty fingers. Keep everything dirty away from 
 wounds. Nothing should be used except sterile dressings from the first 
 aid box. 
 
 "SAFETY FIRST" should be constantly before the mind and should 
 be the common slogan of employer and employe. Prevention is always 
 better than any sort of cure. 
 
WORKMEN'S COMPENSATION LAW 87 
 
 A few don'ts to be remembered 
 
 Don't use anything dirty on a wound. 
 
 Don't try to wash wounds, pending the arrival of a physician the 
 blood from within is cleaner than water from without. 
 
 Don't treat a foreign body in the eye as trivial an ulcer may cause 
 loss of vision. 
 
 Don't treat the injured party roughly you may not know the severity 
 of his injury. 
 
 Don't endeavor to do more than you know to be right. 
 
 Don't hesitate to call a physician when in doubt. 
 
 Don't fail to report to the foreman when you are injured a delay 
 may mean infection and also misunderstanding. 
 
WORKMEN'S COMPENSATION LAW 
 
 Commutation of Claims and Accidents 
 
 Arizona The court may Order the amount of compensation paid in 
 one lump sum. 
 
 California Commutation of the entire amount of compensation may 
 be paid by the commission when it is determined to be for the best interest 
 of either party or all future payments may be ordered to be deposited in a 
 savings bank or trust company. 
 
 Connecticut All future payments may be commuted in a single lump 
 sum by order of the commissioner. 
 
 Illinois All future payments may be commuted to a lump sum by order 
 of the industrial board. Any employer may be relieved of future liability 
 by depositing the value of future payments in accordance with the direc- 
 tions of the industrial board. 
 
 I owa All future payments may be commuted in a lump sum pay- 
 ment by order of any judge in the county in which the accident occurred. 
 
 Kansas Amount of all future payments may be commuted in lump 
 sum in death cases where payments have been continuing for not less than 
 six months. All future payments may be commuted to one lump sum by 
 agreement of the parties or by application to a judge of the district court. 
 
 Maryland The question of whether or not the amount is to be paid in 
 a lump sum or weekly payments depends upon the original contract in 
 relation to compensation which the employer is authorized to make under 
 the act. 
 
 Massachusetts Whenever any weekly payment has been continuing 
 for not less than six months the remainder of the compensation may, in 
 unusual cases, be redeemed by the payment of a lump sum subject to the 
 approval of the industrial board. 
 
 Michigan Whenever any weekly payment has been continuing for not 
 less than six months, the balance of the compensation may be redeemed 
 by payment of a lump sum by agreement of the industrial accident board, 
 and in certain cases the board may direct that all deferred payments may 
 be commuted to the present worth thereof. 
 
 Minnesota Future payments may be commuted to a lump sum by 
 agreement of the parties, approved by the court, except that compensation 
 due for death or permanent total disability or for permanent partial 
 disability resulting from the loss of a hand, or an arm, or a foot, or a leg, 
 or an eye, can be commuted only with the consent of the district court. 
 The employer may deposit the entire amount due with the trustee and 
 thereby be discharged from any future liability. 
 
 Nebraska All future payments may be commuted to one lump sum 
 by agreement of parties, except compensation due for death and permanent 
 
90 STATE DEPARTMENT OF LABOR 
 
 disability which may be commuted only with the consent of the district 
 court. The employer may pay the entire amount of any future compensation 
 by payments to a trustee who may be discharged under certain circum- 
 stances. 
 
 Nevada All future payments may be commuted to a lump sum by 
 order of the industrial commission. 
 
 New Hampshire The court may grant an order for the payment of 
 a lump sum either on application of 'the workman or the employer. 
 
 New Jersey All future payments may be commuted by an order of 
 the Court of Common Pleas, but such commutation is not favored. A sum 
 equal to future payments may be deposited by leave of court, and the 
 employer is thereafter relieved of liability. 
 
 New York Future payments may be commuted and paid into the state 
 insurance fund for the benefit of employes or dependents. 
 
 Ohio The commission, under special circumstances and when the same 
 is deemed advisable, may commute periodical benefits to one or more lump 
 sum payments. (While the above provision was intended originally to 
 apply to the state insurance fund, apparently it applies to payments from 
 employers who decide to carry their own interests as well.) 
 
 Oregon Where a beneficiary resides out of the state and has been a 
 non-resident for a period of one year, the commission may commute all 
 future payments to a lump sum. 
 
 Rhode Island If payments have been continuing for not less than six 
 months either party may apply to a superior court for an order commuting 
 future payments to a lump sum. 
 
 Texas In cases where death or total permanent disability results, 
 the future payments may be commuted to a lump sum, subject to the 
 approval of the industrial accident board. 
 
 Washington In case of non-resident beneficiary, the department may 
 commute the amount due to a lump sum. The department may in any case 
 of death or total disability commute future payments to a lump sum. 
 
 West Virginia The commission, under special circumstances, when the 
 same is deemed advisable, may commute periodical payments to one or 
 more lump sum payments. 
 
 Wisconsin At any time after six months have elapsed from the date 
 of injury, the industrial commission may commute future payments to a 
 lump sum. 
 
WORKMEN'S COMPENSATION LAW 91 
 
 Supreme Court Decisions 
 
 The supreme court of Nebraska has handed down two decisions affect- 
 ing the Nebraska workmen's compensation law. The first decision was in 
 the case of Bailey vs. the U. S. Fidelity & Guaranty Co. and Apperson. 
 In this case the dependents and the employer (Mr. Apperson) agreed on the 
 amount of the compensation and that the amount be paid in a lump sum. 
 The insurance company resisted the settlement. Application was made by 
 the dependents to the district court for an order directing the payment of 
 the compensation in a lump sum, and offering to discount the total amount 
 of compensation agreed upon 4 per cent. The insurance company contended 
 that the district court of Lancaster county lacked jurisdiction to compel 
 these weekly payments in a lump sum. 
 
 In its decision sustaining a finding for the plaintiff by the Lancaster 
 county district court the supreme court said: 
 
 "Under section 3681, Revised Statutes, 1913, of the Workmen's Com- 
 pensation Act, after the amount of compensation payable has been fixed, 
 either by agreement or decision of the court, the parties may agree upon 
 the payment of a lump sum in lieu of the periodical payment. There is no 
 provision in the statute allowing either party to compel the employer to 
 pay, or the workman or employe to receive a lump sum settlement." 
 
 Section 3681 referred to by the supreme court provides that "the amount 
 of compensation payable periodically under the law either by agreement 
 of the parties, by decision of the court, may be commuted to one or more 
 lump sum payments, except payments for death or permanent disability. 
 These may be commuted only with the consent of the district court." 
 
 The intent of the legislature seems to be clearly expressed in the 
 wording of Section 3681. The legislature intended, and so worded the 
 section, and the intent is made plain, that the amount of compensation 
 may be agreed upon between the parties, or by the decision of the court, 
 except compensation due for death and permanent disability. Certainly if 
 the court is authorized to make a decision, and is directed to make a 
 decision, that decision must be in response to an application to the court 
 for the determination of a controversy between the parties. Compensation 
 due for death and permanent disability may be agreed upon between the 
 parties but such agreement in fact becomes the order of the court. 'The 
 use of the word "consent" is synonymous with the word "order" or "de- 
 cision." Courts do not give "consent" but render decisions and issue orders. 
 
 Section 3678 of the Revised Statutes, 1913, provides that in all cases 
 except a claim for death or permanent disability, the parties may mutually 
 agree upon a settlement; or they may mutually agree to submit the con- 
 troversy to arbitration. Failing to agree on either of these methods of 
 
92 STATE DEPARTMENT OF LABOR 
 
 arriving at a settlement either party may submit the claim both as to 
 question of fact, the nature and effect of the injury and the amount of 
 compensation therefor to the district court of the county which would have 
 jurisdiction of a civil action between the parties, which court shall have 
 authority to hear and determine the causes as a suit in equity, and enter 
 final judgment therein, determining all questions of law and fact. 
 
 The intent of the legislature, without question, was to direct a court 
 of competent jurisdiction to render -a decision in all cases where the settle- 
 ment of the controversy could not be reached by mutual agreement. That 
 being the intent of the legislature, either party must be within their rights 
 in making application to a court of competent jurisdiction to render such a 
 decision. 
 
 If the interpretation by the supreme court of the compensation law as it 
 is written is to be the rule followed then there is grave necessity for the 
 amendment of the compensation law in that particular. If a district court 
 has no authority to order a settlement upon the application of either party, 
 then the compensation law has lengthened rather than shortened the period 
 of time which an employe must wait settlement for a personal injury. One 
 of the purposes of the compensation law was to get immediate relief to the 
 injured employe and his family and his dependents. It was believed that 
 this relief should be given when needed, and that there should not be a two 
 or three year wait upon the slow grind of the courts for a decision. Either 
 an injured employe or his dependents are entitled to compensation for a 
 work accident or else he or they are not. There should be no delay or there 
 should be no need of procedure which would permit of a delay in deter- 
 mining the compensation which shall be paid. If the court is not em- 
 powered to order a settlement upon the application of either party, then 
 we are to revert back again, not to the long drawn out method of litigation, 
 but a more unsatisfactory method of long drawn out negotiation. The 
 employe having suffered an injury which causes him to lose his earning 
 power is not able for many reasons to cope with the ability to negotiate 
 of a representative of an insurance company, or an employer, and the ulti- 
 mate end is that the needs of the injured employe, or his dependents, 
 force him to submit to a settlement not in accord with the provisions of the 
 law. 
 
 The Nebraska Supreme Court in the case of James Pierce vs. Boyer- 
 VanKuran Lumber and Coal company held that an employe who was 
 assaulted by a fellow workman, could not recover under the compensation 
 law. The court in making its finding ruled as follows: 
 
 "An accident resulting from a risk reasonably incident to the employ- 
 ment should be classed as arising out of the employment. If an employe 
 is assaulted by a fellow workman, whether in anger, or in play, an injury 
 so sustained does not arise 'out of the employment/ and the employe is not 
 entitled to compensation therefor under the employers' liability act." 
 
 Section 3650, Compiled Statutes for 1913, reads as follows: 
 
 "Section 3650. If both employer and employe become subject to Part 
 II of this article, both shall be bound by the schedule of compensation 
 therein provided for, which compensation shall be paid in every case of 
 
WORKMEN'S COMPENSATION LAW 93 
 
 injury or death caused by accident arising out of and in the course of 
 employment, except accidents caused or resulting in any degree from wilful 
 negligence as hereinafter denned, of the employe." 
 
 Accidents "arising out of and in the course of employment" as used 
 in Section 3650 is quite broad and susceptible to a liberal interpretation as 
 to its application. An injury suffered by an employe through an attack 
 by a fellow servant or a third person, whether that injury be as a result 
 of anger or play, is an accident arising out of and in the course of employ- 
 ment. 
 
 The Supreme Courts of other states have ruled as follows: 
 
 A stenographer v/as feloniously shot and killed by a fellow employe 
 while she was taking shorthand notes of dictation from her employer. Held 
 that she was killed in the course of her employment. (By the Ohio Supreme 
 Court.) 
 
 An employe suspended work about a minute before time to quit for 
 lunch and proceeded to a locker on the premises of his employer. A fellow 
 employe, who was in the locker room, rolled up a pair of overalls and, in 
 a spirit of fun, threw them at him, striking him in the face, and injuring 
 his eye. Held that the injury was sustained while in the course of employ- 
 ment. Ohio Supreme Court. 
 
 An accidental injury to the eyes resulting in total blindness, produced 
 a condition of mind upon which softening of the brain supervened, causing 
 death. It was held that death resulted from the injury. Mitchell vs. Grant 
 & Aldcroft (1905) 7 Wisconsin C. C. 113. 
 
 The employe received a personal injury by reason of the blistering of 
 his hands while using a wheelbarrow; the wound became infected and two 
 operations were performed; because of the injury, operations and suffering 
 the previously impaired nervous state of the employe was accelerated to 
 the point of insanity. Held, in Whalen vs. United States Fidelity and Cas- 
 ualty Co., (Ohio), that the employe was entitled to compensation. 
 
 The employe received a personal injury by reason of the spattering of 
 molten lead into his eye, causing total loss of vision in the injured eye. 
 Subsequently, in a fit of insanity, he threw himself from the hospital window 
 and received injuries which caused his death. Held, in Sponatski vs. Stan- 
 dard Accident Insurance Company, (California), that the employe's widow 
 was entitled to compensation. 
 
 The Board held, in the case of Malewicki vs. American Mutual Liability 
 Insurance- Company (Massachusetts), that the widow of an employe who 
 received a fatal injury by reason of the voluntary leaving of his own 
 work to assist other workmen in loading a heavy heater coil on a flat car 
 was entitled to compensation. 
 
 The Board awarded compensation to the widow of a street sweeper who 
 received a fatal injury by reason of the running away of a horse, it being 
 held that the duties of his occupation especially exposed him to the risks 
 and dangers of the street. This was the case of Lowney vs. City of New 
 Bedford, (Massachusetts). 
 
 The employe, in the case of O'Connor vs. London Guarantee and Acci- 
 dent Company, Ltd., (Massachusetts), had been instructed not to deliver 
 
94 STATE DEPARTMENT OF LABOR 
 
 merchandise to a certain customer because of his delinquency in paying his 
 debts. This customer, having paid his bill, received the goods which he 
 had ordered and had occasion to pass the employe. The customer called 
 the employe a name and struck at him as he passed. The employe parried 
 the blow, and the customer laid hands on him, the former resisting, with 
 the result that he received a personal injury which caused him to be totally 
 incapacitated for work. Held, that the injury arose out of and in the course 
 of his employment, on the ground that the risk of assault by an irate 
 customer, to whom credit had been refused, was a peril involved in his 
 contract of service. 
 
 An employe in the course of his employment may do any act of a 
 personal nature that a person might reasonably do, not in conflict with 
 specific instructions given, without passing beyond the protection of the 
 compensation act. Where an employe goes out upon a porch attached to the 
 kitchen where he is employed as a cook, to smoke a pipe, and in returning 
 to the kitchen to continue his work, falls down the basement stairs and 
 suffers a fracture of the wrist, the accident arises out of and in the course 
 of the employment. G. H. Epsy vs. Mrs. C. C. Grossman (California). 
 
 Court Decisions (Nebraska) 
 
 Bailey vs. the U. S. Fidelity & Guaranty Co. and Apperson. 
 
 1. Under Sec. 3681, Rev. St. 1913 of the Workmen's Compensation Act, 
 after the amount of compensation payable has been fixed either by agree- 
 ment or by the decision of a court, the parties may agree for the payment 
 of a lump sum in lieu of the periodical payments. There is no provision 
 in the statute allowing either party to compel the employer to pay, or the 
 workman or dependent to receive, a lump sum satisfaction. 
 
 2. If an employer and the party to whom payment is to be made make 
 a reasonable agreement in good faith for the payment of a lump sum not 
 inconsistent with the amount of the periodical payments previously deter- 
 mined, the agreement will bind an insurance company, which has assumed 
 a risk under section 3688, revised statutes 1913, equally with the employer. 
 It has no greater rights than he has and cannot block a settlement by 
 objecting to payment in a lump sum merely because it was not consulted. 
 
 3. Commutation is a departure from the normal method of payment 
 and is to be allowed only when it clearly appears that the conditions of the 
 beneficiaries warrants departure. 
 
 4. There is no requirement in the section of the statute which applies 
 to residents of this country that six months must elapse before an agree- 
 ment for a lump sum payment may be made, or the consent of the district 
 court be procured to such an agreement. 
 
 5. A lump sum settlement made by taking the present value of the 
 periodical payments computed at 5 per cent, simple interest is not erro- 
 neous. 
 
 James Pierce vs. Boyer-VanKuran Lumber & Coal Co. 
 
 1. An employe is not entitled to compensation for injury under the 
 
WORKMEN'S COMPENSATION LAW 95 
 
 employer's liability act, (Law 1913, ch. 198) unless the accident which 
 caused the injury happened in the course of his employment and arose out 
 of his employment. 
 
 2. An accident resulting from a risk reasonably incident to the 
 employment should be considered as arising out of the employment. 
 
 3. If an employe is assaulted by a fellow workman, whether in anger 
 or in play, an injury so sustained does not arise "out of the employment," 
 and the employe is not entitled to compensation therefor under the em- 
 ployer's liability act. 
 
 4. The employers' liability act allows the parties interested to "settle 
 all matters of compensation between themselves." (Revised Statutes 1913, 
 Section 3677.) The amount of compensation when not agreed upon by the 
 parties is to be determined by the district court (Sec. 3680) and except 
 as expressly provided in the act must be payable periodically. (Sec. 3666.) 
 
 5. When the amount of compensation in periodical payments has been 
 determined whether by agreement of the parties or by the decision of the 
 court, it "may be commuted to one or more lump sum payments, except 
 compensation due for death and permanent disability." (Sec. 3681.) 
 
 6. In such cases no other or different authority for making such 
 commutation is provided by the section; it still depends upon the agreement 
 of the parties, except that their right to so agree in the specified cases 
 depends upon "the consent of the district court." 
 
 7. In general, the agreement of the parties will authorize such com- 
 mutation of payments. In cases of death or permanent disability, the 
 consent of the court is also necessary. If the district court upon careful 
 investigation finds that special circumstances exist, making it necessary to 
 commute to a lump sum for the protection of the workman or his depen- 
 dents, the court may "consent" to such agreement by the parties. 
 
 Court Decisions (Minnesota) 
 
 Piece Workers vs. Contractors. 
 
 Stanley Bashko vs. Virginia & Rainey Lake Co. (St. Louis County), 
 State of Minnesota ex rel Virginia & Rainey Lake Co. vs. District Court 
 of St. Louis County et al, 148 N. W. 1082, 127 Minn. 519. 
 
 A series of cases arose in which the employe was employed in cutting 
 ties for a lumber company. The question that arose in these cases was 
 whether or not the injured was a piece worker or a contractor. The 
 case which decided the question and which has controlled the decisions in 
 the other cases was Bashko vs. Virginia & Rainy Lake Company. The 
 district court held Bashko to be a piece worker and awarded compensation. 
 The court's memorandum citing the reasons for the decision was as 
 follows : 
 
 Plaintiff went to defendant's logging camp in the ordinary way and 
 asked for a job. He was put to work on defendant's land cutting defend- 
 ant's timber. He boarded in defendant's camp. He used defendant's 
 tools with some sort of understanding as to payment for use or breakage 
 of same. The foreman told him where to work and what to do. No term 
 
96 STATE DEPARTMENT OF LABOR 
 
 of service was agreed on and no definite quantity of timber was to be 
 cut. So far one cannot say whether he was a "monthly man" or a 
 "piece worker." When he wanted some money, instead of asking for so 
 many days' wages, he asked for a count of the ties and poles and posts 
 which he had cut. Instead of the foreman counting the number of days 
 and issuing a time check accordingly, he counted the number of ties 
 and poles and posts and issued a time check accordingly. In either case, 
 the foreman deducted the board bill and the hospital fee and the "van" 
 account. Plaintiff was not told in detail how he should do his work, but 
 he was probably told as much about it as the monthly men were about 
 their work. He was called a "piece worker." He had the right to begin 
 work and quit work each day when he pleased. But he and the defendant 
 both profited from his industry if he worked longer each day than the 
 monthly men, and both lost by his idleness if he loafed in camp, although 
 it affected him in greater degree. If he loafed in camp too much, the 
 defendant would have and would exercise the right to discharge him. 
 No one can reasonably say he was an independent contractor or that he 
 was an employe. He undoubtedly was what is, in the common acceptance 
 of the term in these parts, known as a "piece worker." The effect of his 
 employment as such clearly was merely a method of fixing compensation. 
 Even if some of the characteristics of his particular employment were 
 different or absent, the result would be the same. No one hereabouts 
 employs men by the day or month to make ties, poles or posts. The pen- 
 alties following inspection of such products are too expensive to permit 
 men to make them on any other basis than by the piece subject to in- 
 spection. 
 
 Like conditions compel the same conclusion in employments other 
 than that of getting out timber products. Many manufacturing industries 
 find it more advantageous both to employe and employer to fix the com- 
 pensation on a "piece work" basis. 
 
 The same result should be reached by a court from a consideration 
 of the purpose and intent of the framers of the compensation act. If it 
 is a good law when the wage is fixed on a time basis, it ought to be a 
 good law when the wage is fixed on a piece basis. The industry therefore, 
 should carry the cost of taking care of those maimed or killed in doing 
 its work. 
 
 Decisions have been cited under other compensation acts in other 
 jurisdictions. They are not important. The Minnesota act carries its 
 own definitions, either expressly or impliedly, sufficiently to cover this 
 case and others like it. The act is now on trial. Nothing in the way 
 of judicial construction or legislation should be allowed to hamper the 
 accomplishment of its beneficient purposes or bring its administration 
 into disrepute. 
 
 The supreme court affirmed the decision of the district court. The 
 gist of its opinion is contained in the -syllabus, which it will be observed, 
 determines the question of whether or not a given workman is an em- 
 ploye or. an independent contractor by the test "Has the employer con- 
 trol over his actions or not?" 
 
WORKMEN'S COMPENSATION LAW 97 
 
 Syllabus. 
 
 1. The test for determining whether one person is the employe of 
 another, within the rule making the employer responsible for injuries 
 resulting from the negligence of his employe, is whether such person 
 possessed the power to control the other in respect to the transaction out 
 of which the injury arose. 
 
 2. The court cannot determine, as a question of law, that the rule 
 of respondent superior does not apply, unless the evidence shows con- 
 clusively that the alleged employer possessed no such power of control. 
 
 3. Under the above tests the evidence was ample to sustain the 
 finding of the trial court. 
 
 4. The workmen's compensation act is remedial in its nature and 
 must be given a liberal construction to accomplish the purpose intended. 
 The provisions defining when the relation of employer and employe exists 
 bring within the act all cases in which under the above rule such relation 
 is found to exist. 
 
 Casual Employment. 
 
 Frank O'Connor vs. George M. Hanson, Hennepin County. O'Connor 
 was an employe of the Chicago, Milwaukee & St. Paul Railroad as a 
 fireman, and on the evening of November 21, 1913, it was agreed between 
 O'Connor and Hanson that the said O'Connor should work for Mr. Hanson 
 for one day, to-wit, the 22nd day of November, 1913, unless said employe 
 should be during said day recalled to his employment by the said rail- 
 road, in which case it was agreed that the said employe should be notified 
 and should leave his work under the said Hanson, and it was agreed 
 that the said O'Connor should receive for his work as teamster for Mr. 
 Hanson the sum of $1.00. While engaged as teamster on November 
 22nd he was kicked by a horse and his right leg injured. He claimed 
 compensation. It was held by the court that his employment was but 
 casual and that he could not claim compensation under the act. 
 
 Edward Allison vs. County of Ramsey, Ramsey County. Edward 
 Allison was employer for four days in tacking tar paper on a building 
 at the Boys' Detention Home. The work was ordered by the super- 
 intendent to be discontinued the day before the accident complained of 
 happened, but the plaintiff remained on the premises and claimed to 
 have been injured by falling from a ladder while working. The court 
 held that the employment was "casual" and defined "casual" to mean 
 "occurring at irregular intervals occasional." The regular work there 
 is done by the superintendent, the cook, the laundryman and the farmer. 
 This man's employment was in every sense casual. 
 Intra-state Railroads. 
 
 Vacil Stachurski vs. Alger, Smith & Company, and Duluth & North- 
 ern Minnesota Railway Company, St. Louis county. In this case the 
 injured was in the employ of the Duluth & Northern Minnesota Rail- 
 way Company, which is a logging road owned by Alger, Smith Lumber 
 Company, and was employed in the work of repairing the railway com- 
 pany's spur track and while engaged in the blocking of rails on a spur 
 
98 STATE DEPARTMENT OF LABOR 
 
 track sustained injuries which resulted in his death by being struck by 
 a falling tree. The deceased left surviving him a wife and one child 
 in Austria. 
 
 The court held that the railway was operating under the provisions 
 of the compensation act and awarded compensation to the dependents. 
 
 (The 1915 legislature passed a law, chapter 187, G. L. 1915, placing 
 intra-state, as well as interstate railroads outside the scope of the com- 
 pensation law.) 
 
 Total Dependency Defined. 
 
 Martin and Christina Berg vs. Splady, Albee & Smith (Hennepin 
 County), State ex rel Splady, Albee & Smith Company vs. District Court 
 of Hennepin County et al., 151 N. W. Rep. Advance Sheets, page 123, 
 February 5, 1915. Anton Berg, son of the plaintiffs, was employed by 
 the defendants as a carpenter. He fell on April 16th and died of his 
 injuries on April 25. His wages were $24.00 per week, and out of that 
 he paid to his parents for their support, $50.00 to $60.00 a month. His 
 father and mother were both invalids and incapaciated for work, the 
 mother having been confined to her bed for six years previous to his 
 death. A daughter lived at home, but simply paid her own board and 
 other expenses, and did not contribute to the parents' support. Another 
 daughter, Mrs. Ella Prince, lived with the parents and was paid $4.00 
 a week for the house work and for nursing the father and mother, this 
 sum being paid out of the moneys contributed to their support by Anton 
 Berg. Held: That the parents were wholly dependent, that medical ex- 
 penses of $200.00 and compensation at the rate of $8.40 per week should 
 be awarded. 
 
 The case was appealed to the supreme court upon the question of 
 whether or not the parents were wholly dependent as held by the district 
 court. The supreme court said on this point: 
 
 "Section 8208, G. S. 1913, in subdivision 1, 2 and 3, attempts to define 
 those who shall be deemed 'wholly dependent/ 'actual dependents/ and 
 'partial dependents.' Subdivision 1 provides that the wife and minor 
 children shall be presumed to be 'wholly dependent.' Subdivision 2 says 
 that husband, mother, father, etc., who were 'wholly supported' by the 
 workman at the time of his death and for a reasonable period prior there- 
 to, shall be considered his 'actual dependents.' Subdivision 3 provides 
 that any dependents named in subdivision 2 who regularly derived 'part 
 of their support' from the wages of the deceased workman shall be 
 considered his 'partial dependents.' 
 
 Subdivision 12 provides that if the deceased employe leave no widow, 
 children or husband, but does leave a parent or parents either or both 
 of whom are wholly dependent on the deceased, there shall be paid, 
 if one parent, 25 per cent of the monthly wages of deceased, if both 
 parents, 35 per cent thereof. Subdivision 15 provides that "partial de- 
 pendents shall be entitled to receive only that proportion of the benefits 
 provided for actual dependents which the average amount of wages reg- 
 ularly contributed by the deceased to such partial dependent at and for 
 
WORKMEN'S COMPENSATION LAW 99 
 
 a reasonable time immediately prior to the injury, bore to the total wage 
 of the deceased during the same time." 
 
 The facts which bear upon the question whether plaintiffs were 
 "wholly supported" by deceased, "wholly dependent" upon him, or whe'ther 
 they derived but '"part of their support" from his wages, were "partial 
 dependents," are undisputed, and are as follows: "The father was an 
 invalid and since December 1, 1913, had been wholly incapaciated to 
 contribute in any measure to the support of himself or the members of 
 his family; the mother has been a helpless invalid for more than six 
 years; an unmarried daughter made her home with plaintiffs and paid 
 $4.00 per week for her board, room, etc., which was the cost of these ac- 
 commodations; a married daughter and her child lived with plaintiffs 
 from August, 1913, to April 16, 1914; during this time she did all the 
 household work, and cared for her invalid father and mother. Until 
 December 1, 1913, she received $4.00 per week in payment of her services. 
 Since that date she performed them gratuitously. The court found that 
 the reasonable value of the services of this daughter was $4.00 per week 
 over and above her board and that of her child." 
 
 The question is whether these gratuitous services of the daughter 
 for a few months made the parents only "partially dependent" upon the 
 son's support. It is clear that the only money the parents or family 
 had for their support came from the son, Anton. He was the real head 
 of the family, the bread winner. The daughter's services had been rend- 
 ered for but a short time, and may well be considered a temporary help. 
 We should give the provisions of the act a very liberal construction. It 
 is rather difficult to understand on what theory the legislature makes its 
 distinction between those who are "wholly dependent" and those who are 
 but partially so. The criterion should be, as it seems to us, the amount 
 of wages that the workman has contributed monthly to the dependent, 
 rather than whether or not the latter had received some measure of sup- 
 port from other sources. But of course this is for the legislature to 
 determine. It may certainly be argued with some force that one who 
 owns his home, or for whom others perform friendly services, is not, 
 technically speaking, "wholly dependent" upon the cash received from the 
 wages of the worker of the family. Nor is one who receives help from 
 a charitable organization, or from neighbors. But we cannot suppose 
 that the legislature intended that such a person should be considered only 
 a "partial dependent." Giving the act a reasonable and liberal con- 
 struction, our conclusion is that the trial court was justified in finding 
 that plaintiffs were wholly dependent upon the deceased for their support. 
 Arising Out of the Employment. 
 
 Minnie V. Almquist vs. Nelson-Spellisey Implement Company, Meeker 
 County. State ex rel Nelson-Spellisey Implement Company vs. Meeker 
 County, Vol. 151 N." Rep., p. 123 (Advanced Sheets), February 5, 1915. 
 Affirmed. 
 
 Minnie V. Almquist vs. Nelson-Spellisey Implement Company, Meeker 
 County. This company in conjunction with its implement business wa.s 
 operating an auto livery and sometimes carried passengers by automobile 
 
100 STATE DEPARTMENT OF LABOR 
 
 for hire. Walter V. Almquist worked for this company repairing ma- 
 chinery and automobiles and sometimes drove automobiles which carried 
 passengers for hire. On October 27, 1913, he drove a car for the de- 
 fen5ants from Litchfield to a place more than twenty miles distant, and 
 while returning to Litchfield at night was killed by his automobile over- 
 turning. The defendants claimed that his death was due to his voluntary 
 intoxication. The findings of the court overthrew this contention but 
 found that he had been reckless. The court held that the accident "arose 
 out of and in the course of his employment," and awarded compensation. 
 
 The supreme court in sustaining the decision of the district court 
 in this case states: 
 
 "We find evidence tending to show that decedent was at times ad- 
 dicted to the excessive use of intoxicating liquors. That he drank such 
 liquors on the day in question prior to starting on the particular trip 
 with the automobile, and also during the time thereof; and also evidence 
 that he was not a habitual drinker and was not intoxicated on this oc- 
 casion. In this state of the record we are limited to the inquiry whether 
 the evidence, if satisfactory to the trial court, reasonably tends to sup- 
 port the plaintiff's contentions. We hold that it does." 
 
 Bettie L. Young vs. Employers' Liability Assurance Corporation, 
 Wabasha County. John Young was employed as head miller by the Wa- 
 basha Roller Mill Company. He was found dead on the ground on the 
 outside of the building at 8:30 a.m., on October 23, 1913. He fell out of 
 a fifth-story window, where he had been seated while examining the fire 
 escape or observing the working of the machinery of the mill. The de- 
 fendants admitted that the accident occurred in the course of his em- 
 ployment but denied that it arose out of his employment. The court 
 held that inasmuch as his duties took him to any part of the mill at his 
 own discretion and the accident occurred while he was in the course 
 of his duties, it arose out of his employment. 
 
 Fred Cook vs. Alger, Smith & Company, St. Louis County. Fred 
 Cook was hired by his employer on December 12, 1913, to work on roads 
 being constructed in and about latter's lumber camps in Lake county, 
 Minnesota. He was boarded and lodged in a camp constructed and oper- 
 ated by the employer in the vicinity of the work said employe was engaged 
 in doing. Among the buildings were a sleeping camp and an eating camp 
 that had been in operation for several weeks prior to February 16, 1914, 
 and during that time a large sheet of ice was formed immediately in 
 front of the ' door leading from the sleeping camp to the eating camp. 
 While "passing from the sleeping camp to the eating camp to get his 
 breakfast, and before he was suitably dressed for the work on the roads 
 for which he was hired, he stepped on the sheet of ice aforesaid, slipped 
 and fell and injured the deltoid muscle of his right arm and shoulder. 
 Such injury to said employe was caused by an accident arising out of 
 and in the course of his employment." Compensation awarded. 
 In Course of Employment. 
 
 George Chuque vs. Mahoning Ore & Steel Company, St. Louis county. 
 Deceased was killed while riding home from work on a train owned by 
 
WORKMEN'S COMPENSATION- LAW - 101 
 
 his employers. The employes had been forbidden to ride on the train 
 and the accident occurred after he had left his work. Held that it was 
 not an accident "in the course of his employment." 
 
 Fred Katzenmaier vs. John Doeren, Ramsey County, December 31, 
 1914. Judge Catlin. Employer owns a cigar factory in St. Paul. A ce- 
 ment sidewalk, one hundred and three feet long, extends from the street 
 to the entrance of the said factory building, and a gravel carriage drive- 
 way also runs from the street to the factory building. This sidewalk and 
 driveway are on the premises of the employer and constitute a part of his 
 property. 
 
 On the morning of February 2, 1914, the plaintiff, one of Doeren's 
 employes, fell while passing along the said- sidewalk on his way to 
 his work in the factory. The facts relative to the injury were as follows: 
 
 For a couple of days prior to the morning of February 2 a small 
 pool of ice had formed on this sidewalk. On the morning of February 
 2 and before 7:30 a.m., there was a light snow fall covering all that 
 section of the city. The employer, through one of his employes, had 
 started to remove the snow and at 7:30 a.m. had almost reached the 
 point where the ice had formed and would have had the walk cleaned 
 by 7:45 a. m., the hour at which employes were supposed to begin to enter 
 the factory. 
 
 The plaintiff came to work at 7:30 a.m. He had lost the use of his 
 right leg from his hip down when a child three years of age, and three 
 years prior to receiving the injury complained of, had suffered a stroke 
 of paralysis on his left side affecting his left leg and foot and crippling 
 him so that he could not stand upright without crutches. On account 
 of his physical condition the plaintiff had fallen at numerous times in 
 various parts of the city. On this particular morning while walking 
 on crutches on the said cement sidewalk leading from the street to the 
 factory he fell and fractured his left leg so that it was permamently 
 disabled. This accident occurred before he reached the factory building 
 and before he performed any services or work for his employer. 
 
 The court held that the accident did not occur in the course of and 
 arise out of the employment. Commenting on its decision in a memor- 
 andum the court states as follows: 
 
 "'Several cases, sustaining claims of employes where injuries were 
 incurred under somewhat analogous conditions, do not warrant the court 
 in sustaining the claim of the plaintiff in this action, because of the 
 difference in the phraseology of the statutes of the states in which the 
 decisions were rendered. Comparison of the Minnesota act with that of 
 the English Workingmen's Compensation Law, with the federal law, and 
 with the similar laws enacted by various states in the Union, shows that 
 the right of employes to compensation has been very much more circum- 
 scribed by the express terms of our act. Under the Wisconsin act, by 
 the express terms of the statue an employe is entitled to compensation 
 for injury sustained on his employer's premises while going to and de- 
 parting from his labor. Other acts embrace such injuries because sus- 
 tained while doing something 'incidental to the work' for which he is 
 
102 STATE DEPARTMENT OF LABOR 
 
 employed. Nearly all the statutory laws of this character provide that 
 the injury must 'arise out of and in the course of employment,' as does 
 the Minnesota act. But our statute expressly provides as no other act 
 does that the clause 'personal injuries arising out of and in the course 
 of employment' shall not 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 injury and during the hours of service as such workmen.' The act 
 is, by its terms, much more limited than any other statute and less 
 humanitarian, but the question of limitation and of humanitarianism and 
 the general policy of the law are questions for the legislature and not for 
 the court. Neither sympathy for the plaintiff in his pathetic condition 
 nor wishes that the law were broader and less circumscribed in its terms 
 can properly move the court to give to the language of the act a meaning 
 which will bring the unfortunate plaintiff within its terms and entitle 
 him to compensation. He worked for the defendant and was on his prem- 
 ises at the time of the accident, but was not engaged where his services 
 was being performed or where his service required his presence as a part 
 of such service during the hours of service as such workman. 
 
 Accident Defined. 
 
 Charles DeCook vs. Duluth Brewing & Malting Co., St. Louis county. 
 State of Minnesota ex rel Duluth Brewing & Malting Co. vs. District 
 Court of St. Louis County et al., 151 N. W. Rep. 912. October term, 1914. 
 
 Conclusions of Facts (District Court). 
 
 Charles DeCook was in the employ of the Duluth Brewing & Malting 
 Company as an assistant to a foreman and his duty consisted in making 
 necessary repairs and having general charge of the repairs of its brew- 
 ing and malting plant and bottling house. 
 
 "On said April 9th, while said employe was in the aforesaid em- 
 ployment and while pursuant to and in the regular course of his em- 
 ployment and occupation he was so engaged in shaping and fashioning 
 into a key for light protectors in said plant of what he supposed was 
 an empty copper cartridge, the same exploded with terrific force, and 
 as the direct result thereof one or more of the flying pieces was hurled 
 into and penetrated his right eye, whereby he lost the entire sight thereof; 
 that what said employe supposed was an empty cartridge was in fact 
 an unexploded dynamite cap loaded with fulminating explosive of high 
 power. 
 
 "That said accident or personal injury was due to accident within 
 the meaning of the statute in such case made and provided and was due 
 to an unexpected or unforseen event which happened suddenly and violent- 
 ly and produced at the time injury to the physical structure of the body 
 of said employe. 
 
 "That said employe received said injury while engaged in, on and 
 about the premises where his said services were being performed at the 
 time of said injury, and during the hours of said service, and it was 
 not caused by the act of a third person or fellow employe who intended 
 
WORKMEN'S COMPENSATION LAW 103 
 
 to injure him because of reasons personal to him, and not directed against 
 him as an employe or because of his employment." 
 
 As conclusions of law the court finds that the employe, Charles DeCook, 
 is entitled to compensation from said employer at the rate of $8.10 per 
 week for one hundred weeks and to $115 for medical and surgical treat- 
 ment and costs. 
 
 Memorandum. 
 
 An injury arises in the course of an employment when it is sustained 
 while the employe is engaged generally in or about the service for which 
 he was employed. It arises out of the employment when, after the fact, 
 we can see that it was occasioned by a danger which was incident to 
 that service, as opposed to a danger which was wholly unconnected there- 
 with. 
 
 Plaintiff was not limited by any hard and fast rule to the performance 
 of particular acts. As compared with many employes his service was 
 quite general in its character. At the time of the injury plaintiff was 
 engaged in attempting to accomplish a result which reasonably he might 
 well have thought within the service required. Having in mind the scope 
 and purpose of the act under which he claims to recover, it would be 
 an unwarrantably narrow construction to hold that the injury in ques- 
 tion did not arise out of and in the course of his employment. 
 
 The case of Plumb vs. Cobden Flour Mills Co., House of Lords, 1913, 
 relied upon by Defendant, seems to rest upon a claim which is nothing 
 more or less than that the workman adopted an unusual and perhaps 
 negligent method of doing the work at which he was engaged, and the 
 conclusion seems to be that because he was so negligent therefore his 
 injury did not arise out of his employment. This is strange doctrine, 
 whether from the House of Lords or from anywhere else, unless it is a 
 necessary deduction because of some statutory provision. It is at variance 
 with the best thought of this country, and especially with our own statute, 
 under which mere negligence is no bar to such a claim as this, unless 
 the negligence be wilfull. 
 
 This case was appealed to the supreme court which affirmed the 
 decision of the district court. The supreme court states as follows: 
 
 "If the injury arose out of and in the course of the employment 
 the judge is right. 
 
 "The injured servant, Charles DeCook, had worked for relator, in 
 the bottling house of its brewery at Duluth, Minn., as the foreman's helper 
 during more than five years prior to the accident. In the bottling room 
 were a number of electric light bulbs. To protect them against breakage, 
 a wire screen cover was provided. These screens were fastened with a 
 lock to prevent the bulbs from being stolen. The foreman carried the 
 key a simple three-cornered contrivance. It was part of DeCook's duty 
 to replace any of the light bulbs which broke or became defective. In 
 doing this he had to get a key from the foreman, unlock the cover, take 
 the broken bulbs to the foreman, then go to the office or store room for 
 another bulb, replace it, lock the guard, and return the key to the foreman. 
 
104 STATE DEPARTMENT OF LABOR 
 
 On April 9, 1914, DeCook had occasion to go to the basement where some 
 other employes were engaged. One of these handed DeCook what ap- 
 peared to be an empty cartridge shell of unusual length. It occurred 
 to DeCook that the empty shell could be easily fashioned into a key so 
 as to save the time and energy spent in hunting up the foreman and 
 carrying the key back when light bulbs had to be replaced. During the 
 working hours, in the afternoon of April 9, 1914, DeCook went to the 
 place in the room where the tools* and appliances to make the ordinary 
 repairs called for in the business were kept, took a hammer and began 
 to hammer the supposed empty shell into a key. The shell happened 
 to be an unexploded dynamite cap and the third blow set it off. A frag- 
 ment therefrom pierced plaintiff's right eye and destroyed the sight. 
 
 "It is earnestly insisted that the facts show DeCook to have departed 
 from his duties as a servant when he met with the accident, and to have 
 been engaged in something entirely at variance with the master's business 
 and without the scope of the employment. Dynamite caps were neither 
 kept nor used in relator's establishment, and, it is said, DeCook had no ex- 
 press or implied authority to make a key, hence the accident cannot be 
 held to have arisen out of the employment. 
 
 "The law in question was intended to relieve against the hardships 
 resulting from the many unfortunate accidents which do take place in this 
 age of extensive use of complicated machines and appliances, and of great 
 enterprises necessitating the indiscriminate employment of the employ- 
 er's fault or negligence is eliminated from cases arising under this act. 
 The intention was to compensate all accidental injuries growing out of 
 and received in the service except those intentionally self-inflicted or due 
 to intoxication. The statute is highly remedial in character. The courts 
 ought therefore to guard against a narrow construction, and should not 
 exclude a servant from the benefits thereof unless constrained by un- 
 ambiguous language of the clear intent as gathered from the entire act. 
 
 "Both employer and employe in this case are within part 2, which 
 provides that in every case of personal injury, 'caused by accident, arising 
 out of and in the course of employment, without regard to the question 
 of negligence,' compensation shall be paid according to a fixed schedule. 
 (Sec. 8213, G. S. 1913.) The clause here involved is afterwards defined 
 in the act in these words: 'Without otherwise affecting the meaning or 
 interpretation of the abridged clause, "personal injuries arising out of 
 and in the course of 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 services requires their presence 
 as a part of such service at the time of the injury caused by the act of 
 a third person or fellow employe intended to injure the employe because 
 of reasons personal to him, and not directed against him as an employe, 
 or because of his employment.' (Sec. 8230, i.) 
 
 "The trial court found expressly that DeCook was within the partial 
 definition quoted when injured; and the evidence sustains the finding in 
 that respect. However, the so-called definition is rather in the nature 
 of a limitation of the clause than an inclusive definition thereof, so that 
 
WORKMEN'S COMPENSATION LAW 105 
 
 it still is to be determined whether the injury to DeCook arose out of 
 and in the course of his employment. In England and also in some courts 
 here attempts have been made, with more or less success, to formulate 
 general rules with regard to the shade of distinction between the terms 
 out of and in the course of, as used in the act. All agree that the ex- 
 pressions are not intended to be synonymous. An injury may be received 
 in the course of the employment, and still have no casual connection with 
 it so that it can be said to arise out of the employment. Bryant vs. Fissell 
 84 J. L. 72, McNicoPs case 215 Mass. 497, Barnes vs. Nunnery Colliery 
 Co., Ltd., 1912 App. C. 44 (Eng.) Plumb vs. Cobden Flour Mills Co., 
 Ltd., 1914 App. C. 62 (Eng.) also reported in vol. 109, Law Times, p. 
 759; Hills vs. Blair, 148 N. W. 245; Hopkins vs. Michigan Sugar Co., 150 
 N. W. 325. Under the decisions it is reasonably clear that DcCook's in- 
 jury was received in the course of employment. The doubtful proposition 
 is whether it arose out of the employment. 
 
 "We shall not attempt to formulate a definition of the phrase, acci- 
 dental injury arising out of the employment, except to say that the acci- 
 dent causing the injury must arise out of work or business being done 
 for the master either by direct or implied authority. The trial court evi- 
 dently took the view that DeCook in good faith believed he was furthering 
 his master's business and performing an act which he might reasonably 
 be expected to do when he undertook to supply himself with a key. He 
 had never been told that the light bulbs were to be under lock as to him 
 who was charged with the duty of seeing that the broken and defective 
 ones were replaced. He had a variety of matters to attend to in which 
 he, like servants generally, had to rely on the promptings of his own 
 judgment as to detail. Undesirable, indifferent, and of little value indeed 
 are the services of an employe who must be expressly directed as to the 
 time, manner, and extent of doing each particular task. Hence, when a 
 servant undertakes in the course of his employment, during the proper 
 hours therefor, and in the proper place to do something in furtherance 
 of his master's business and meets with accidental injury therein the 
 trial court's finding, that the accident arose out of and in the course of 
 employment, should not be disturbed, unless it is clear to us that the 
 ordinary servant, in the same situation would have no reasonable justi- 
 fication for believing that what he undertook to do when injured was 
 within the scope of his implied duties. If another servant duly engaged 
 in the master's work had had his sight destroyed, instead of DeCook, in 
 this accident the thought would have been almost irresistible that this 
 law was meant to cover such injury. But, upon the facts in this case, 
 we doubt whether DeCook should occupy a less favorable position. If 
 the attempt to make a key was reasonably within the scope of his em- 
 ployment, the fact that, from ignorance or error of judgment, he made 
 use of dangerous material, not provided by the master, should not neces- 
 sarily exclude the conclusion that the injury arose out of the employment. 
 The term cannot be restricted to injuries caused from anticipated risks 
 of the service if the law is to be of the benefit intended. 
 
 "Our conclusion is that the judgment is right and should stand." 
 
106 STATE DEPARTMENT OF LABOR 
 
 Court Decisions (Ohio) 
 
 An employe's duty was to drive a light delivery wagon drawn by a 
 horse which was used in making deliveries, obtaining supplies, etc., and 
 when not so employed to work in the shop of the employer. It was also 
 a part of his duty to take care of the horse which he drove, and in so doing 
 to take the horse and wagon to his. home in the suburbs on Saturday after- 
 noon in order to give the horse Sunday pasture, and to drive him back 
 to the city on Monday morning. He was injured on a Monday morning 
 while caring for the horse, preparatory to driving to the city. Held that 
 the injury was received in the course of his employment. 
 
 1. The provisions of Section 26 of the compensation act relate solely 
 to civil actions for damages, and not to proceedings before the Industrial 
 Commission of Ohio. (Biddinger vs. The Champion Iron Co., decided 
 July 1, 1914, followed.) 
 
 2. The violation by an employe of a rule of his employer does not 
 necessarily take him out of the course of his employment. (Stopyra vs. 
 The U. S. Coal Co., decided August 19, 1914, followed.) 
 
 3. Workmen engaged in mining coal are employes of the mine 
 owner, though the mining operations are carried on under a contract with 
 a third party who selects and pays the workmen, where by the terms of 
 the contract the mine owner reserves control and supervision over the 
 working of the mine. (McAllister vs. The National Fireprofing Co., de- 
 cided August 31, 1914, approved and followed.) 
 
 An employe who, after suspending work for the day, and while pre- 
 paring to leave his employer's premises, negligently walked over a pile 
 of spindles to the place where his coat and hat were hanging for the 
 purpose of obtaining those articles of apparel, and was injured by one of 
 the spindles turning and spraining his ankle, was injured in the course 
 of his employment and is entitled to compensation. 
 
 An employe employed by a brewing company to care for and drive 
 a team of horses used in transporting a beer wagon, was injured by fall- 
 ing out of a door in the second story of a building in which the horses 
 were kept while he was preparing to feed them. Held that the injury 
 was sustained in the course of employment. 
 
 An employe was employed to operate a buffing machine. He was paid 
 by the hour and was not employed for any specified length of time. He 
 was injured within three hours after he entered upon his employment, 
 by being struck on the left side near the region of his heart by a "buffer's 
 chuck," which disabled him so that he had to suspend work for the day, 
 and was unable to again resume work prior to his death, which occurred 
 sixteen days after the injury. The deceased employe was unmarried and 
 lived with his mother whom he supported. Held that the employment 
 was not casual; that the injury was the cause of his death; that the 
 mother was wholly dependent upon him for support at the time of his 
 death. 
 
 One who is employed by a manufacturing company to do the paint- 
 
WORKMEN'S COMPENSATION LAW 107 
 
 ing of its products, the manufacturing company furnishing a place to do 
 the work by the piece or job, the person employed being left free to 
 employ, direct and discharge his helpers, the manufacturing company 
 retaining no control over the mode or manner of doing the work except 
 that the person employed to do the painting and his helpers are required 
 to observe shop regulations applying to all employes of the manufactur- 
 ing company, is not an independent contractor but an employe. It follows 
 that, being an employe of the manufacturing company, he acted as their 
 agent in employing his helpers, and they, too, are employes of the manu- 
 facturing company. 
 
 1. A claim for compensation on account of injury sustained by an 
 employe in the course of employment which results in permanent partial 
 disability such as is defined in the schedule contained in Section 33 of the 
 workmen's compensation act does not abate by reason of the death of 
 such employe from causes other than the injury, even though the amount 
 of such compensation had not been determined prior to his death. 
 
 2. Whether compensation which would have been paid to an injured 
 employe had his death not ensued can lawfully be paid to his dependents 
 in the event of his death quaere. 
 
 Court Decisions (Massachusetts) 
 
 Signing of settlement receipt does not bar proceedings by employe 
 to determine right to reimburse on account of expenditure for medical 
 services. The insurer objected to the taking of jurisdiction by a com- 
 mittee of arbitration in the case of Ducy vs. American Mutual Li- 
 ability Insurance Company, claiming that the signing of a settle- 
 ment receipt by him acted as a bar to proceedings to determine his 
 right to obtain payment of the amount expended for medical services 
 under the statute. The committee ruled that it had jurisdiction, and 
 awarded the employe the sum of $18 to cover his expenditure for medical 
 services under the statute. 
 
 Inference of fact drawn by committee. The evidence shows that it 
 was the custom of the employe to warn the stableman of the arrival of 
 each team by ringing a bell, and it was often his habit to look out of the 
 window to notice whether the team had been admitted. The body of the 
 employe was found underneath the window from which the employed looked 
 to note the arrival and admission of the teams, and it was held by the 
 committee of arbitration, in the case of O'Brien vs. Casualty Company 
 of America, that the injury arose out of and in the course of the em- 
 ployment. 
 
 Partial dependent receives entire earnings of employe. It was held, 
 in Devaney vs. American Mutual Liability Insurance Company, that the 
 partial dependent who receives all the earnings of the employe was 
 entitled to full compensation. 
 
108 STATE DEPARTMENT OF LABOR 
 
 Court Decisions (California) 
 
 Mrs. Alice F. Goering vs. The Brooklyn Mining Company: 
 
 Where an employe, during working hours, sits down under an ore 
 bin to rest in the shade and is killed by the collapse of the bin, this fact 
 does not establish wilful misconduct in the absence of evidence tending 
 to show that deceased h#d been forbidden to rest in the shade under this 
 bin for brief periods of time during working hours, especially where the 
 evidence fails to show that there was reason to anticipate danger in 
 resting in the place where the accident occurred. 
 
 An employe is acting in the course of his employment if at the 
 time of the accident he be resting for a short time in the shade during 
 working hours. An employe is under the protection of the Compensa- 
 tion Act while doing any act which a person employed may reasonably 
 do during working hours, whether he be actually at work at the time 
 of the accident or not. 
 
 A mere secret intention to terminate the employment does not in fact 
 end the relation of employer and employe until notice be given to the 
 employer or the employe abandons the job by subsequent failure to per- 
 form the work assigned. An employe is under the protection of the Com- 
 pensation Act even after his discharge, providing he be injured upon 
 the premises of the employer while remaining there for reasons connected 
 with his former employment. 
 
 Harry H. Stevens vs. Western Indemnity Company: 
 
 Where a teamster owning his own team and wagon contracts to do 
 hauling for an employer, and as part of the terms of the agreement it is 
 found that the teamster agrees to provide a team and driver for six dollars 
 per day, and later appears for work himself driving the team, and such 
 teamster is required to work eight hours per day, and in doing such work 
 is under the immediate direction, control and supervision of the employer 
 as to the mode of performing the work, and the employer retains the 
 power and right of discharging the teamster and ruling his team off 
 the work if the services rendered were not satisfactory, and no contract 
 is made for a specified amount of hauling, or specified quantity of work 
 to be done or specified length of time during which the services should 
 be rendered, then the agreement amounts to a contract of hire and is 
 not an independent contract for the furnishing of services. 
 
 Where, under the circumstances mentioned in the preceding para- 
 graph, it further appears that one week after the beginning of the employ- 
 ment the teamster was requested to and did furnish another team belong- 
 ing to himself, with a driver hired and paid for by himself, to work for 
 the employer at six dollars ($6) per day for the use of the team and 
 driver, such circumstances does not change the status of the employe to 
 that of an independent contractor. While it is true that the injured em- 
 ploye may have been an independent contractor as to the second team 
 provided by him for defendant's work, he is at the same time an employe 
 under the terms of the first contract made between himself and his em- 
 
WORKMEN'S COMPENSATION LAW 109 
 
 ployer. It is the latter contract that must be consulted to determine the 
 rights between the original employe and his employer. 
 
 The contention that the findings and award of the Commission are 
 unreasonable, in a case involving the granting or denying of compensa- 
 tion, as stated in paragraph 3 of section 84, does not apply to awards 
 granting or denying compensation. This section does not include the 
 word "award" and therefore applies only to regulations made by the 
 Commission for the safeguarding of employes against safety orders, de- 
 cisions, rules or regulations, unreasonable in character. The reasonable- 
 ness or unreasonableness of an award for compensation is not a ground 
 upon which an application for rehearing of an award grafting or denying 
 compensation can be based. 
 
 Jose Salvatore vs. New England Casualty Company: 
 
 Where a person sustains by accident a broken leg, causing temporary 
 total disability for which compensation is awarded, and in the same acci- 
 dent, a crushing of the chest, which, after the healing of the leg, develops. 
 a serious illness, such person has suffered a continuous disability result- 
 ing from said accident, and is entitled to claim compensation therefor, even 
 though the illness due to the chest injury did not arise until more than, 
 six months from the original accident. 
 
 Where the evidence warrants it, compensation for increased disabil- 
 ity resulting from the accident may be awarded by supplementary order 
 after notice, without the necessity of the filing of a verified application for 
 a rehearing by the injured employe. The request for such relief is not in 
 the nature of a petition for a rehearing as it does not call into question 
 the correctness of any prior decision by the Commission. It calls instead 
 for supplemental relief which can be given without any other formality 
 than notice and an opportunity to be heard. 
 
 Where compensation is requested upon the ground that applicant's 
 disability has increased since the former award of compensation, such 
 request is not a new proceeding within the period of limitations of the 
 Compensation Act, but is the exercise of a power conferred upon the 
 Commission by section 82 (b) of said Act. 
 
 An industry is liable for all legitimate consequence following from 
 an accident, among which consequences affecting the extent of disability 
 is the possibility of an error of judgment or unskillfulness on the part 
 of any attending physician, whether called in by the employer or the 
 employe. 
 
 The Commission declines to give opinions on hypothetical cases or to 
 lay down general statements or rules of law binding upon it, aside from 
 rulings necessary to the making of findings of fact, awards and opinions 
 upon issues arising in causes submitted. 
 
 A. L. Olson vs. S. J. Tice and Globe Indemnity Company: 
 
 Where an injured employe asks that the indemnity awarded be com- 
 muted to a lump sum to establish him in business, and it appears that 
 he is intemperate and had been arrested for drunkenness even since his 
 
110 STATE DEPARTMENT OF LABOR 
 
 injury, and there are no unusual circumstances making commutation 
 desirable, such request will be refused. 
 
 James Collins vs. Southwestern Surety Insurance Company: 
 
 Mere disobedience of an order does not necessarily constitute wilful 
 misconduct, in the absence of a showing that the disobedience was wilfdl 
 and premeditated and was prompted by a bad state of mind. It must 
 also be shown that orders given by the employer were accompanied by 
 such disciplinary measures as were necessary to entitle them to respect. 
 Where discipline is unreasonably lax by the employer and his orders are 
 habitually disregarded by his employe, disobedience of such orders will 
 not constitute wilful misconduct. 
 
 Where an employe is injured by defective loading of a hod upon a 
 mortar bucket being used to hoist mortar to the upper story of a building 
 under construction, and the evidence shows that the injured employe has 
 fastened the hod to the bucket, that his employer seeing it had called 
 down to him not to have the. bucket sent up but that other workmen stand- 
 ing near by shouted that it was all right and for the driver of the horse 
 to go ahead, and the applicant is injured by the hod falling from the 
 bucket in being taken out at the upper story, such evidence is insufficient 
 to establish wilful misconduct of the injured employe contributing to his 
 accident. The accident was in fact due to others causing the bucket to 
 be hoisted, directly assented to by the employer by failing to stop them. 
 
 Elora May Douglas vs. London and Lancashire Guarantee and Accident 
 Company: 
 
 Where an employe is given treatment following the accident by a 
 physician designated by the employer or the latter's insurance carrier, 
 and such physician discharges the employe as cured, but thereafter the 
 employe obtains treatment from another physician of his own choice, for 
 the same injury, and it is shown to the satisfaction of the Commission 
 that the disability had not terminated at the time of the applicant's dis- 
 charge, the applicant is entitled to an award for the reasonable value 
 of surgical treatment furnished by the physician of his own selection. 
 
 John Hoffman vs. Maryland Casualty Company: 
 
 Where an employe bruises his leg; this bruise subsequently breaking 
 down into an ulcer, and the duration of this ulcer is greatly extended by 
 a condition of varicose veins, but it is shown that the varicose condition 
 did not in any way contribute to the formation of the ulcer, compensation 
 will be allowed for the full period of disability. 
 
 Gus Lentz vs. Southern Oregon Transportation Company: 
 
 Where the injured employe is a resident of California, the employer 
 is a corporation chartered in California and doing much of its business 
 in the State, and the contract of employment is made here, such employe 
 is entitled to compensation if injured upon a ship belonging to the em- 
 ployer while the ship is lying at its dock at a port in Oregon. 
 
WORKMEN'S COMPENSATION LAW 111 
 
 Claude Terrill Rouner vs. Aetna Life Insurance Company: 
 
 Where an employe sustains a serious injury to one eye in 1911, which 
 will eventually result in total blindness of that eye and in 1914 sustains 
 the immediate destruction of the sight of the other eye by accident oc- 
 curring in the course of his employment with the defendant, the percent- 
 age of permanent disability for which the employer is liable in compen- 
 sation is to be determined solely with reference to the physical injuries 
 caused by the second accident and not with reference to the condition 
 of the applicant ensuing after the accident as influenced by the first. The 
 employer is therefore liable to pay compensation for the loss of one 
 eye and not for total blindness. 
 
 Mrs. Carrie A. Pettis vs. The Fidelity and Casualty Company of Neiv 
 
 York: 
 
 Where an employe is engaged in snapping and stripping string beans 
 for a cannery, after working for two weeks, she notices a blister or sore 
 upon her thumb, which becomes worse and within two or three days 
 becomes infected and very painful, subsequently requiring the amputa- 
 tion of the thumb, such injury is due to accident and not to occupational 
 disease. It is not indispensable to establishing her claim that the appli- 
 cant be able to swear what bean pod was that finally, ( by the friction 
 of its rough surface against the thumb, made a hole in the skin, it being 
 sufficient that a hole was made, that infection did enter, and that dis- 
 ability was occasioned thereby. 
 
 Where the fact that the applicant was suffering from a sore thumb 
 was reported to the foreman of the department in which she was em- 
 ployed, such -notice is sufficient to make the employer liable for the reas- 
 onable cost of medical treatment if it be later shown that such soreness 
 was due to accident arising out of the employment. It matters nothing 
 that the parties thought the injury trivial as there was abundant experi- 
 ence in the cannery with effects following such injuries to warrant the 
 furnishing of proper treatment. 
 
 Lucille Augusta Rieff vs. City of Sacramento: 
 
 Where a school teacher, after dismissing her school for the day, re- 
 mains upon the school premises to finish her work and while at work 
 goes to the telephone for a moment to send a message upon private busi- 
 ness, and is injured by tripping over the telephone cord and falling, such 
 accident occurs in the course of and arises out of the employment. The 
 course of employment is not restricted to acts actually done for the em- 
 ployer; it also includes all acts which an employe may reasonably do 
 while at work. 
 
 Mrs. Lillian J. Hallett vs. Maryland Casualty Company: 
 
 Where a woman is employed in a restaurant, part of her duties being 
 to operate a dumb waiter, and prior to any definite illness she complains 
 of feeling ill and of finding the heavy lifting of the dumb waiter too 
 hard for her, and on a Saturday afternoon she goes to her home complain- 
 
112 STATE DEPARTMENT OF LABOR 
 
 ing of illness and on the following day is taken seriously ill with acute 
 dilation of the heart, such evidence is insufficient to prove that the heart 
 trouble was proximately caused by an accident occurring in the course 
 of the employment. 
 
 B. S. Craig vs. George Hartson: 
 
 Where a carpenter is engaged by a farmer for the sole purpose of 
 building a barn and is injured while working upon said barn upon the 
 farm, he is not at the time of his accident engaged in farm labor and is 
 therefore under the protection of the Workmen's Compensation, Insurance 
 and Safety Act. 
 
 M. A. Block vs. Pacific Coast Casualty Company: 
 
 A person employed as a traveling salesman whose duty it is to solicit 
 orders from grocery stores, who slips and falls while walking from one 
 store to another in the course of his employment, is entitled to compen- 
 sation for disability sustained thereby. The reason for the slipping and 
 falling is immaterial as long as the presence of some sufficient cause is 
 inferable, and if the accident occurs in the course of the employment. 
 
 Where an employe is injured while at work, sustaining a fracture 
 of the left leg, and is taken to a hospital for treatment for his injury, 
 and, while in the hospital, slips and falls on arising from his bed because 
 of clumsiness due to his disability, breaking the other leg, the second 
 accident may properly be regarded as a continuation of the first, and 
 is therefore compensable. 
 
 The contention that the fractures of applicant's legs were due to 
 a disease of the bones, if established, would not, unless the defendants 
 were able to prove that the bones were made brittle by reason of some 
 virulent disease of long standing, suffice to overcome the general rule that 
 the employer takes the employe in the condition in which he is when he 
 enters his employment, and is responsible for results of injury, notwith- 
 standing the fact that such results may be more serious than would be the 
 case with a normal person. 
 
 Johanna Head vs. Fidelity and Deposit Company of Maryland: 
 
 In determining whether or not the fast driving of an automobile 
 constitutes wilful misconduct, 'the Commission must be guided by such 
 fundamental facts as the condition of the road, the time of day and the 
 character of the car. 
 
 Driving an automobile at a speed of thirty-five to forty-five miles 
 in the dark, over a fairly good and straight road, by a driver familiar 
 with it, in a heavy, powerful car, equipped with strong lights, may be 
 hazardous, but does not exceed gross negligence, nor constitute wilful 
 misconduct. 
 
 George Sams vs. Komas & Dorros: 
 
 Where an injured employe, failing after notice to his employer to 
 receive medical assistance, goes first to one physician and then to another 
 .and then to a physician in a third town, is uncertain what to do, and 
 
WORKMEN'S COMPENSATION LAW 113 
 
 because of this neglect to act quickly, the infection requires amputation 
 of a finger, held, that the employer is responsible for the disability re- 
 sulting and for the medical and surgical expense for ninety days from 
 the date of the accident. 
 
 Mrs. A. W. Hewitt vs. Red River Lumber Company: 
 
 Where intoxication is pleaded as a defense, the burden of proof rests 
 upon the defendant to affirmatively establish the facts of such intoxi- 
 cation. 
 
 The finding of a bottle resembling a whisky bottle, containing a fluid 
 that looks like whisky, upon the body of an employe killed in an accident, 
 and the statement of a fellow employe that another employe had told him 
 he had been drinking with the deceased the morning of the accident, held 
 not to furnish evidence sufficient to establish the alleged intoxication of 
 the deceased. 
 
 Because of the extraordinary hazard of the occupation of an electric 
 lineman and his need of full possession of his faculties, the Commission 
 would deny compensation if the evidence were sufficient to show any 
 considerable degree of intoxication. 
 
 Where a petition for a rehearing is asked upon the ground of newly 
 discovered evidence, such petition must show the nature and purport of 
 such evidence so that the Commission may ascertain its materiality, weight, 
 and why it could not, with reasonable diligence, have been produced at 
 the prior hearing, otherwise the petition will be denied. 
 
 Jeremiah Broderick vs. San Francisco Stevedoring Company and United 
 
 States Fidelity and Guaranty Company: 
 
 Where an employe sues his employer in the Superior Court for dam- 
 ages for injuries received in the course of the employment and the court 
 sustains a demurrer to the complaint because it fails to allege that the 
 employe was injured through the gross negligence or wilful misconduct 
 of an elective officer of the corporation employing him-, and the employe 
 thereupon makes his application to this Commission for compensation, 
 held, that his act of filing the complaint was a vain proceeding and not 
 sufficient to constitute a binding election, so as to bar the employe from 
 his right to compensation. 
 
 Where applicant accepted four weeks' medical and hospital treatment 
 from his employer, and the services of a doctor employed especially to 
 treat him, held, that he accepted such treatment as compensation and 
 this constituted such prior election of remedies as to bar his right to 
 begin an action in the Superior Court. 
 
 L. B. Campbell vs. City of Los Angeles: 
 
 Where it was customary and usual for a battalion chief of the fire 
 department to appoint a substitute fireman in place of a regular fireman 
 on leave of absence, held that such substitute is entitled to disability 
 compensation, if injured, although there be no provision either permitting 
 or prohibiting or in any way providing for such employment under the 
 civil service rules. 
 
114 STATE DEPARTMENT OF LABOR 
 
 The appointment by an officer of a municipality of a substitute fire- 
 man, the acceptance of the services of the fireman and the payment to 
 him of wages by the municipality, constitute such workman an "employe" 
 within the meaning of the Compensation Act, whether he be such or not 
 under the civil service rules. 
 
 Mrs. Sue Avery, William Harry Avery, Winifred Avery and Mrs. M. E. 
 
 Avery vs. Pacific Gas and Electric Company: 
 
 Total dependency of a wife upon her husband at the time of his death 
 by accident, is not established as a conclusive presumption of law where, 
 because of his prior desertion of her, she is not living with him at that 
 time. 
 
 Where a wife is not living with her husband at the time of his 
 death by reason of his desertion, her dependency upon him is a question 
 of fact and wher*e the evidence shows that for some time prior to his 
 death the husband had made no contribution to his wife's support de- 
 pendency is not established. 
 
 Minor children living in Oklahoma for whose maintenance their 
 father living in California is legally liable at the time of his death, are 
 conclusively presumed wholly dependent upon him for support. 
 
 Evidence of contributions made to a mother by her son in the nature 
 of occasional gifts and not as dependable and stated contributions to her 
 support, is insufficient to establish dependency of the mother upon the 
 son. 
 
 Hospital Services 
 
 The question as to whether an employer or an insurance carrier shall 
 be held liable for care and attention received by an injured employe at 
 his home by members of his family, when ordered to be taken to his home 
 instead of a hospital, has occasioned considerable controversy. The em- 
 ployer, before the physician is called, or the physician after being called, 
 usually directs as to where the injured employe shall be removed. A 
 hurried examination does not always reveal the seriousness of the injury, 
 and as a result an injured employe is removed to his home when he 
 should have been removed to a hospital so that he may receive the care 
 and attention which the injury calls for. A removal at a later date to 
 a hospital would be dangerous. Members of the family or friends must 
 give the care and attention. The California supreme court in Kelley vs. 
 Massachusetts Bonding & Insurance Co., in passing upon the provision 
 for hospital services in the California law, states what seems to be a fair 
 rule: 
 
 J. B. Kelley vs. Massachusetts Bonding and Insurance Company: 
 
 A claim against a defendant employer or insurance carrier for those 
 ordinary services which members of a family render each other when 
 sick or injured will not be allowed, but in case of injury requiring hos- 
 pital treatment, an award will be made for services rendered and appli- 
 ances furnished to the injured employe by another member of his family 
 
WORKMEN'S COMPENSATION LAW 115 
 
 in lieu of said treatment and in accordance with the consent and direction 
 of the physician in charge, especially where the member rendering such 
 services gives up his regular employment in order to render such 
 services. 
 
 In such case where a son gives up employment in which he is 
 earning three dollars a day to care for his injured father, from May 28th 
 to July 2nd, held, ninety dollars is the reasonable value of such services. 
 
 Court Decisions (General) 
 
 Distinction Between "Injury" and "Accidental Injury" 
 
 In relation to an accident insurance policy the United States supreme 
 court has defined the term "accidental" as follows: "The term "acci- 
 dental' was used in the policy in its ordinary, popular sense, as meaning 
 happening by chance; unexpectedly, or as not expected. If a result is 
 such as follows from ordinary means voluntarily employed, in a not un- 
 usual or unexpected way, it cannot be called a result effected by accidental 
 means. But if, in the act which precedes the injury, something unforseen, 
 unexpected, unusual occurs which produces injury, then the injury has 
 resulted through accidental means." Mutual Accident Assn. vs. Barry, 
 131 U. S. 100, 121; 9 Supt. Ct. R. 755; 333 L. Ed. 60. 
 
 Injuries Without External Manifestation. 
 
 Evidence that an employe was strong and healthy up to the time he 
 complained of a hurt received while at work on heavy lifting and that 
 he died suddenly a few days thereafter for no other assignable cause, is 
 sufficient to show that he sustained some internal injury, although there 
 were no external manifestations thereof. Re S. W. Powers, Op. Sol. 
 Dep. C. & L., p. 176. 
 
 A workman was employed in a millrace, where he had to work for 
 a fortnight up to his knees in water. As a result he contracted inflam- 
 mation of the kidneys and died. It was held that this was a personal 
 injury by accident. Sheeran v. F. & J. Clayton & Co. (1909), 44 Irish 
 L. T. 52; 3 B. W. C. C. 583. 
 
 Bends. 
 
 It has been held that "bends" (a condition brought about by working 
 in compressed air) , was in the nature of a rupture or lesion of some one 
 of the internal organs, due to the changes between high and normal atmo- 
 spheric pressure, and was therefore an accidental injury entitling a work- 
 man to compensation under the Federal act. Re William Murray, Op. 
 So., Dep. C. & L., p. 201. 
 
 Injuries Due to Gradual Wearing or Constant Use of Particular Members. 
 Applicant was pinning shirts while in the employ of the defendant. 
 The continual pressing against the heads of the pins of the side of the 
 right forefinger resulted in the finger becoming hard. A white spot ap- 
 peared, and the- finger grew steadily worse. Pus developed and applicant 
 
116 STATE DEPARTMENT OF LABOR 
 
 was totally disabled for about three weeks, at the end of which time she 
 recovered so as to be able to do light housework. Defendant refused 
 payment on the ground that there was no evidence to connect the alleged 
 injury with an accident growing out of the employment. This was one 
 of the difficult cases that come before Industrial Accident Boards. Held 
 that applicant was entitled to recover, because the nature of her work 
 made it a moral certainty that the injury resulted as claimed. She was 
 denied reimbursement for medical and surgical treatment because she did 
 not afford the defendant an opportunity to furnish the same. She was 
 awarded the sum of $24.38 for two weeks' total indemnity and for ten 
 weeks' partial indemnity. Smith vs. Munger Laundry Co., Cal. Indus. 
 Ace. Bd., Nov. 19, 1913. 
 
 Germ or Poison Entering System Through Break in Skin. 
 
 Blood poisoning through use of a hypodermic needle is an accident. 
 Bailey vs. Interstate Gas. Co., 8 App. Div. 127; 40 N. Y. Supp. 513, aif'd, 
 158 N. Y. 723; 53 N. E. 1123. 
 
 Where death results from erysipelas, which follows as a natural, 
 though not as a necessary consequence of an accidental wound and not 
 of the diseases, is within the requirements of an accident policy that death 
 must result from accidental means. Caldwell vs. Iowa State Traveling 
 Men's Association, 000 Iowa 000; 136 N. W. Rep. 678. 
 
 An infection of the hand and a secondary infection of the leg; re- 
 sulting from an abrasion of the skin and the accidental introduction of 
 a foreign substance, is an injury within the meaning of the Federal Act. 
 Re L. B. Green, Op. Sol. Dep. C. & L., p. 199. In the last-mentioned 
 case the workman was overhauling a pump from the United States Ship 
 "Vigilant" when his hands became infected. The attending physician 
 made an incision and removed pieces of hard material resembling spicula 
 of coral. It appeared that the pump had come from a vessel which had 
 been in service in Oriental waters, which accounted for the foreign ma- 
 terial. It was held that under such circumstances he was entitled to 
 compensation. 
 
 Skin Affections from Acids and Other Irritants. 
 
 While an employe working on a steamship was removing an old water 
 closet his face and hands were poisoned by coming in contact with loose 
 cement, iron rust, old dry lead and probably some disinfectant, and it 
 was held that he was entitled to compensation for the time he was dis- 
 abled. Re F. J. Cournoyer, Op. Sol. Dep. C. & L., p. 582. 
 
 Where a workman has eczema which he contended had been aggra- 
 vated by coming in contact with salt water, while working about a ship, 
 that the eczema had not been aggravated and compensation was denied. 
 The question of whether or not compensation would have been granted 
 had it appeared that the eczema had been aggravated by the salt water, 
 was not decided, but the inference to be derived from the case is that 
 under such circumstances compensation would have been granted. Re 
 C. B. Scanlan, Op. Sol. Dep. C. & L., p. 590; s. c. p. 591. 
 
WORKMEN'S COMPENSATION LAW 117 
 
 Contracting Infectious and Contagious Diseases; Anthrax; Glanders. 
 
 If a germ causes a bodily ailment without an abrasion of the skin 
 the general rule is that the result is a disease and not an accidental injury, 
 within the meaning of an accident insurance policy. Bacon vs. U. S. 
 Mutual Accident Assn., 123 N. Y. 304. In the last mentioned case the 
 deceased died from anthrax and it was held that the cause of death was 
 a disease and not an accident. A contrary ruling has been made under 
 the British Compensation Act, where a workman contracted the disease 
 of anthrax by a germ settling on his eye while sorting wool which was 
 infected with anthrax. It was held that he had suffered injury by acci- 
 dent and was entitled to compensation. Britons, Limited, vs. Turvey 
 (1905), A. C. 230, 7 W. C. C. I. See also H. P. Hood & Son vs. Mary- 
 land Gas. Co., 206 Mass. 223; 92 N. E. 329, holding that contracting 
 glanders handling hides was an accident within the meaning of an acci- 
 dent insurance policy. 
 
 Disease Due to Traumatism but Without Direct External Infection or 
 
 Contagion; Tuberculosis. 
 
 Where a workman was injured by an explosion and he contended 
 that the injury which he received from the accident was responsible for 
 tuberculosis which he subsequently contracted, it was held, on conflicting 
 testimony, that the workman had not sustained the burden of showing 
 that the tuberculosis was due to the injury received from the accident. 
 Compensation was awarded for the direct injuries but not for the dis- 
 ability due to the tuberculosis. Feldman vs. Westinghouse Electric and 
 Min. Co., Essex Common Pleas, Jan. 1913; 36 N. J. Law J. 48. In the 
 last mentioned case it was assumed that if the workman could have 
 shown that the tubercular condition was due to the injury which he re- 
 ceived that he would have been entitled to have received compensation 
 by reason of the disability caused by the tuberculosis. 
 
 Apoplexy. 
 
 A workman, in the course of his ordinary and usual employment, 
 overexerted himself and brought on an attack of cerebral hemmorrhage, 
 and it was held that the occurrence was an accident within the meaning 
 of the Act. M'Innes vs. Dunsmuir & Jackson (1908), 45 Scotch L. R. 
 804; 1 B. W. C. C. 226. See to the same effect, Martin vs. Travelers' 
 Ins. Co., 1 F. & F. 505. 
 
 Heart Diseases. 
 
 A workman who, while engaged in work which was too heavy for 
 him, felt a sudden pain upon his chest and a few days afterward became 
 totally incapacitated. On an application for compensation the arbitrator 
 found as a fact that the cause of the incapacity was a cardiac break- 
 down, due to the fact that the work in which the workman had been en- 
 gaged was too heavy for him and that he -was not injured by any sudden 
 jerk; that the repeated excessive exertions strained the workman's heart 
 until it was finally overstrained. Under the circumstances, it was held 
 
118 STATE DEPARTMENT OF LABOR 
 
 that the incapacity was not due to a personal injury by accident within 
 the meaning of the Act. Doe vs. Fife Coal Co. (1909), 46 Scotch L. R. 
 325; 2 B. W. C. C. 8. 
 
 A workman suffering from an advanced aneurism of the aorta was 
 doing his work in the ordinary way by tightening a nut with a spanner. 
 This ordinary strain caused a rupture of the aneurism, resulting in death. 
 The county court judge, on conflicting evidence, found that the work- 
 man's death resulted from personal "injury by accident within the mean- 
 ing of the Act. It was held in the House of Lords that there was evi- 
 dence on which the county court judge was justified in so deciding. 
 Clover Clayton & Co., vs. Hughes (1910), A. C. 242; 3 B. W. C. C. 275, 
 affg 2 K. B. 798; 2 B. W. C. C. 15. The above-entitled case was con- 
 sidered at great length in the various opinions written in the House of 
 Lords. Lord Loreburn wrote the principal opinion, and in the course 
 of it he said: '"In this case a workman, suffering from an aneurism in 
 so advanced a state of disease that it might have burst at any time, was 
 tightening a nut with a spanner, when the strain, quite ordinary in this 
 quite ordinary work, ruptured the aneurism, and he died. This is a mere 
 summary of the facts. * * * * In what I am about to say I take 
 the facts as he found them in extenso and reply upon them. * * * * 
 It may be said, and was said, that if the Acts admits of a claim in the 
 present case, everyone whose disease kills him while he is at work will 
 be entitled to compensation. I do not think so and for this reason: It 
 may be that the work has not, as a matter of substance, contributed to the 
 accident, though in fact the accident happened while he was working. 
 In each case the arbitrator ought to consider whether, in substance, as 
 far as he can judge on such a matter, the accident came from the disease 
 alone, so that whatever the man had been doing it would probably have 
 come all the same, or whether the employment contributed to it. In other 
 words, did he die from the disease alone or from the disease and employ- 
 ment taken together looking at it broadly? Looking at it broadly, I say, 
 and free from over nice conjectures: Was it the disease that did it or 
 did the work he was doing help in any material degree? In the present 
 case I might have come to a different conclusion on the facts had I been 
 arbitartor, but I am bound by the findings, if there was evidence to sup- 
 port them. It is found that the strain contributed to the death. There 
 was evidence on which the learned judge was entitled so to find, as I 
 respectfully think, and I, therefore, advise your Lordships to affirm the 
 order of the Court of Appeal." There were two dissenting opinions filed 
 by Lords Arkinson and Shaw. 
 
 A foreman carpenter received an electric shock which threw him 
 against the work bench with such violence that it caused a sudden and 
 unusual acceleration, force and pressure in the action of the heart, re- 
 sulting in paralysis, and it was held that this was a personal injury within 
 the meaning of the Massachusetts Act. Milliken vs. U. S. Fidelity & 
 Guar. Co., Mass. Indus. Ace. Bd., Rep. Cas., p. 187. 
 
 The death of an employe having chronic valvular disease of the heart 
 was caused by the shock of the fall of a heavy wheel upon him, and 
 
WORKMEN'S COMPENSATION LAW 119 
 
 it was held that the fatality was due to a personal injury arising out 
 of and in the course of the employment. Welch v. Employers' Liability 
 Assurance Corporation, Mass. Indus. Ace. Bd. 
 
 Sprains, Strains and Ruptures (Hernia). 
 
 An internal injury, caused to a person in a normal state of health, 
 by a fortuitous and unforseen event, in the usual course of his business, 
 is an accident. So held in a case where a workman, while lifting a heavy 
 beam, suddenly tore several fibers of the muscles of his back. Boardman 
 vs. Scott & Whitworth (1901), 3 W. C. C. 22, aff'd (1901), 85 L. T. 502; 
 4 W. C. C. 1. 
 
 A man was employed in moving heavy planks from one pile to 
 another. During the night the planks were all frozen together so that 
 there was some difficulty in separating them. The lower planks in the 
 pile were more firmly stuck together than those above, but the man was 
 not aware of this. He sustained an injury owing to the difficulty of 
 moving one of the lower planks. It was held that there was evidence of 
 an accident. Timmins vs. Leeds Forge Co., 2 W. C. C. 10. 
 
 A workman in his master's field, finding that the grain had been 
 trodden down by bullocks, stooped to raise it and sprained his left leg; 
 or, as the workman explained it, "wrung his left leg." This injury subse- 
 quently developed into traumatic phlebitis (inflammation of the walls 
 of the vinus from a physical injury) and it was held that this was a 
 personal injury by accident within the meaning of the Compensation 
 Act. Purse vs. Hayward (1908), 1 B. B. C. C. 216. 
 
 A carpenter strained himself moving a heavy radiator and was after- 
 wards operated upon, death being caused by appendicitis and intestinal 
 obstruction which supervened. It was held that this was an injury within 
 the meaning of the Massachusetts Act and the widow was entitled to 
 compensation. McGuigan vs. Maryland Casualty Co., Mass. Indus. Ace. Bd. 
 
 Compensation was granted where it appeared that the workman had 
 suffered "severe straining of lumbar muscles and bruising of the third 
 and fourth vertebrae." Gross vs. Marshall Butters Lumber Co., Mich. 
 Indus. Accc. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at page 417. 
 
 A workman, rising from a kneeling position, in which he had been 
 at work, felt a pain in his knee. The cartilage was found to be ruptured. 
 He had wrenched his knee three years before, and had been incapacitated 
 for a time, but had thereafter worked without difficulty until this oc- 
 casion, although at times he felt pain when getting up from kneeling. 
 It was held that the workman had suffered injury by accident, and was 
 entitled to compensation. Borland vs. Watson, Gow & Co. (1911), 49 
 Sec. L. R. 10; 5 B. W. C. C. 514. 
 
 A workman who was slightly ruptured at the time he entered the 
 employer's service, in the course of his work had to subject himself to 
 an unusual though not to a unique strain. The result of this strain 
 was to increase the rupture and incapacitate the workman from following 
 his employment. It was held that although from a purely medical or surg- 
 ical view, the injury could not be said to be an untoward or unexpected 
 
120 STATE DEPARTMENT OF LABOR 
 
 event, it was nevertheless an accident within the meaning of the Act. 
 Fulford vs. Northfleet Coal & Ballast Co. (1907), 1 B. W. C. C. 222. 
 
 A workman who ruptured himself while lifting some planks in the 
 usual course of his employment was held to have suffered an injury by 
 accident. Timmins vs. Leeds Forge Co., 16 T. L. R. 521. 
 
 Pneumonia Following Exposure or Traumatism. 
 
 An employe got his feet wet i^ a leaky boat, which was furnished 
 by his employer, and pneumonia developed as an after-effect, and it was 
 held that this was a personal injury under the Massachusetts Act. Stone 
 vs. Travelers Insurance Company, Mass. Indus. Acct. Bd. 
 
 A widow of an employe whose death was caused by loba"r pneumonia 
 due to cold and exposure, was held to be entitled to compensation as this 
 was an injury within the Massachusetts Act. Milliken vs. Travelers 
 Insurance Co., Mass. Indus. Ace. Bd. (Appeal pending to Supreme Judicial 
 Court) . 
 
 A healthy and steady workman was employed to pick up cotton 
 waste on the decks of a ship in dock. He went to work at 1 o'clock 
 and at 3 p. m. climbed up the ladder of the hold, apparently in great 
 pain, and he was sent home. He received medical attention and marks 
 were found on his ribs. Three days later he developed pneumonia from 
 which he died. The doctor who attended him attributed the pneumonia 
 to the injury to his sides. It was held that there was evidence that the 
 workman had died from personal injury by accident arising out of and 
 in the course of his employment. Lovelady and Others vs. Berrie (1900), 
 2 B. W. C. C. 62. 
 
 The dependents of a workman who died of pneumonia contended that 
 the pneumonia resulted from lowered vitality caused by an accident. 
 The only evidence that there had been an accident consisted of several 
 inconsistent statements made by the workman, to various persons, on 
 the day after the alleged accident, which were admitted without objection 
 being taken. The medical referee gave a report that the pneumonia could 
 not have been caused by the alleged accident. The county court judge 
 held that he was not bound to surrender his judgment to the medical 
 referee, and held that there had been an accident causing the pneumonia, 
 and so he awarded compensation. It was held on appeal that there was 
 no evidence that there had been an accident arising out of and in the 
 course of his employment. Langley vs. Reeve (1910), 3 B. W. C. C. 175. 
 
 Lead Poisoning. 
 
 Acute lead poisoning is not such an injury as entitles an employe 
 to compensation under the Federal Act. Re C. L. Schroeder, Op. Sol. 
 Dep. C. & L. p. 172. 
 
 Lead poisoning which caused the loss of weight and other symptoms 
 culminating in a condition of secondary anemia, which brought about 
 inability to work, was held to be a personal injury within the meaning 
 of the Massachusetts Workmen's Compensation Act. Johnson vs. London 
 Guarantee & Accident Co., Mass. Indus. Ace. Bd. (Appeal pending to 
 Supreme Judicial Court.) 
 
WORKMEN'S COMPENSATION LAW 121 
 
 "Sunstroke," "Heat Stroke" and "Frostbite." 
 
 A fireman on board ship was seen frequently drinking water while 
 in the stoke hole. Soon after he was found to be very ill. He next be- 
 came unconscious and died. No post mortem was held and the medical 
 evidence as to the cause of death was conflicting. The county court judge 
 granted compensation, and on appeal it was held that the question as to 
 whether or not the workman did, in effect, sustain a personal injury by 
 accident, arising out of and in the course of the employment, was one 
 of the fact for the county court judge to decide. Johnson and Others vs. 
 Owners of Ship "Torrington" (1909), 3 B. W. C. C. 68. 
 
 Drowning. 
 
 An employe, a boatman, fell overboard and was drowned, and it 
 was held that this was a personal injury entitling the widow to com- 
 pensation. Booth vs. Aetna Ins. Life Co., Mass. Indus. Ace. Bd. 
 
 Mental Shock or Fright and Nervous Troubles. 
 
 A workman has been held to have suffered an accidental injury by 
 witnessing the effects of an accident to a fellow workman whereby nervous 
 shock resulted. Yates vs. South Kirby Featherstone & Hemsworth Col- 
 liers (1910), 103 L. T. 170; 3 B. W. C. 418. In the last-mentioned 
 case the court said: "When a man in the course of his employment goes 
 to a place and sustains a nervous shock producing physiological injury, 
 not a mere transient emotional impulse, it is an accident arising out of and 
 in the course of his employment. It is something unexpected, no doubt, 
 in this sense, that I do not suppose the man thought for a moment or 
 knew when he was doing what was plainly his duty in going to the 
 rescue of the other party, that it would have this physiological effect on 
 his system. It had that effect. There was no malingering here. It was 
 a perfectly genuine case. Mr. Simon has not suggested anything to the 
 contrary; and I should not myself. I think this is a case which falls 
 within the Act of Parliament on the same principle and in the same way 
 as if the man, on going to the rescue of the other collier, was injured 
 by this fall, or had stumbled or fallen on his way there. That, undoubt- 
 edly, would have been a case within the Act, and I can see no real difference 
 in principle when once you get rid of the danger of malingering, between 
 that case and the case where a physiological injury physiological damage 
 is produced by reason of what happened to this man when he went in 
 the course of his duty to the neighboring stall, and saw what had hap- 
 pened to this workman." In this case a man, while at work, heard an 
 outcry from an adjacent chamber. He found a miner severely injured 
 and so badly wounded that he died. Subsequently the rescuer alleged that 
 he was so affected by the appearance of peril of the miner that he was 
 incapacitated from further employment and this was held to be a personal 
 injury by accident. 
 
 Neurosis following an injury entitles an employe to compensation 
 when incapacity for work is due to the neurosis. Lata vs. American 
 Mutual Liability Ins. Co., Mass. Indus. Ace. Bd. 
 
122 STATE DEPARTMENT OF LABOR 
 
 Compensation was denied on the application of a railway conductor 
 who contended that he had suffered a nervous breakdown as a result 
 of the employment in the service of the company. Campbell vs. Detroit 
 United Railway, Mich. Indus. Ace. Bd., Oct. 15th, 1913; The Indicator, 
 Oct. 20, 1913, at page 417. 
 
 Employe's Transportation an Incident of His Employment. In the 
 Donovan case the employe, in accordance with his usual custom, 
 was riding home in a vehicle furnished by his employer, when he 
 received the personal injury which incapacitated him. The Board found 
 that such transportation was incidental to his employment, and the Su- 
 preme Judicial Court affirmed the finding. 
 
 Father totally dependent despite the fact he assisted in conducting 
 unprofitable business. The employe contributed all of his earnings to his 
 mother, who was the custodian of said earnings for the benefit of the 
 family. The father, an invalid, assisted in conducting an unprofitable 
 store, and it was held, in De Pasquale vs. Employers' Liability Assurancfe 
 Corporation, Ltd., that he was wholly dependent upon the earnings of 
 the deceased employe for support. 
 
 Dependent daughter physically incapaciated for earning. The claim- 
 ant, the daughter of the deceased employe, in the case of Carter vs. 
 Travelers Insurance Company, lived with her mother, who was separated 
 from her father, and all her support came from her father. She was 
 in poor health and was physically incapacitated for earning. Held, that 
 she was totally dependent upon the employe for support. 
 
 One-eyed employe loses vision in other eye. The employe, in Morrison 
 vs. Fidelity and Casualty Company of New York, received a personal 
 injury which destroyed the vision in his left eye, the vision in right eye 
 having been destroyed previously by reason of a cataract. Held, that 
 he was totally incapacitated for work because of the injury. 
 
 Incapacity for work due to unreasonableness of employe in refusing 
 to permit of performance of operation. The employe, in Nicotero vs. 
 Globe Indemnity Company, refused to permit the performance of an oper- 
 ation for the removal of the affected eye, and it was held that such re- 
 fusal was unreasonable, and that all incapacity for work was due to his 
 unreasonableness and not to the injury. 
 
 Employe unable to perform work provided. The employe, in Krulla 
 vs. Casualty Company of America, was furnished certain employment 
 which he was unable to perform, and was thereafter unable to obtain any 
 employment which he could perform, because of the incapacity due to 
 the injury. Held, that he was entitled to compensation on account of 
 total incapacity. 
 
 Usual degree of strain causes occupational neurosis. The employe, 
 in the case of Lee vs. Employers' Liability Assurance Corporation, Ltd., 
 was incapacitated for work by reason of a condition of occupational neur- 
 osis, due to the unusual degree of strain upon certain groups of muscles 
 for a long period of time at his trade of cigar maker. Compensation 
 was awarded for the incapacity for work resulting thereby. 
 
WORKMEN'S COMPENSATION LAW 123 
 
 Fibroid tuberculosis, or stone grinder's phthisis, causes death of em- 
 ploye. It was held by a committee of arbitration, in the case of Kalanquin 
 vs. Travelers Insurance Company, that the occurrence of fibroid tubercu- 
 losis, or "stone grinder's phthsis," by reason of the inhaling of small par- 
 ticles of stone and dust, is a personal injury arising out of and in the 
 course of the employment. 
 
 Hypostatic pneumonia follows injury and operation. The employe, in 
 Cantwell vs. Travelers Insurance Company, slipped and fell while em- 
 ployed in the bottling department of the subscriber, dislocating the clavicle. 
 He was operated upon three days later, and died of hypostatic pneumonia 
 caused by the weakening of his system by reason of the operation. Held, 
 that his widow was entitled to compensation. 
 
 Injury occurs while entering place of employment. In the case of 
 Driscoll vs. London Guarantee and Accident Company, Ltd., it was held 
 than an employe who was required to use the flight of stairs upon which 
 she received the injury in order to enter her place of employment was 
 entitled to compensation. 
 
 Lobar pneumonia follows reduced powers of resistance. The em- 
 ploye, in Merritt vs. Travelers Insurance Company, died from lobar pneu- 
 monia, due to exhausted vitality and reduced powers of resistance, follow- 
 ing a personal injury arising out of and in the course of his employment, 
 and compensation was awarded the widow. 
 
 Heart lesion grows progressively worse dating from injury. In 
 O'Hare vs. Employers' Liability Assurance Corporation, Ltd., the con- 
 dition of heart lesion grew progressively worse, dating from and by rea- 
 son of the occurrence of the injury, and compensation was awarded. 
 
 Traumatic cataract to right eye sympathetically affects left eye. Com- 
 pensation was awarded, in Stachuse vs. Fidelity and Casualty Company 
 of New York, because of the sympathetic affection of the left eye, by 
 reason of a condition of traumatic cataract of the right eye, due to a 
 personal injury arising out of the employment. 
 
 Personal injury causes nephritis and blindness. It was held, In 
 Cooper vs. Massachusetts Employers Insurance Association, that the ne- 
 phritis and blindness which incapacitated the employe were caused by 
 the injury and electrical shock which he received while performing his 
 work for the subscriber. 
 
 Tips or gratuities are earnings. The employe, in Hatchman vs. New 
 England Casualty Company, was a waiter, and received in addition to 
 his wages and meals certain tips or gratuities from the patrons of the 
 hotel. Held, that tips or gratuities are earnings, and that employe's 
 compensation should be based upon all his earnings. 
 
 Incapacity due to compulsory vaccination. The employe was 'vac- 
 cinated as the result of a requirement by the board of health, in the fac- 
 tory of his employer. Infection, followed by an ulcer, resulted from the 
 vaccination, and the employe was incapacitated for work for a period 
 of nine weeks. Held, in Fewore vs. Employers' Liability Assurance Cor- 
 poration, Ltd., that he was entitled to compensation. 
 
124 STATE DEPARTMENT OF LABOR 
 
 Compensation due under statute a vested interest. The dependent 
 mother, having died since the hearing before the committee of arbitration, 
 th Board held, in Murphy vs. Aetna Life Insurance Company, that the com- 
 pensation due her under the statute is a vested interest and passes to 
 her estate. 
 
 Release by employe does not.deprive widow of right of recovery after 
 death. The employe in the Cripps-case had signed a release in consider- 
 ation of the receipt of a small sum of money, having elected to take 
 damages from the independent wrongdoer rather than to receive com- 
 pensation under the statute. Later, however, complications due to the 
 original injury developed and he died. The widow, claiming a right of 
 recovery independent of the employer's control, asked for compensation on 
 account of his death. The court says: 
 
 "The statute of 1911, chapter 751, is not penal, but is based on the 
 theory of compensation. Primarily its object is to provide, in place of 
 wages which he can no longer earn, the means of subsistence for the 
 employe injured without 'serious and willful misconduct' on his part, 
 if he survives, or for the widow, and other dependents, if death ensues 
 
 either with or without conscious suffering The right of recovery 
 
 expressly given to his widow cannot accrue until his death. Having been 
 created for her benefit, it is independent of his control, and under section 
 22 can be discharged only by herself where she is the sole dependent, 
 or by those authorized to act in her behalf." 
 
 Dependency is a question of fact unless the claimant comes within 
 the conclusive presumption clause. The court held, in the Gallagher case, 
 that a wife who was living apart from her husband at the time of his 
 death for justifiable cause, and who had endeavored in every possible 
 way to secure the support to which she was entitled, was not entitled to 
 be "'conclusively presumed to be wholly dependent" upon him for support, 
 deciding that, under such circumstances, dependency is a question of 
 fact. A recent amendment to the act gives a wife who lives apart for 
 justifiable cause the benefit of the "conclusive presumption" clause. 
 
 Lead poisoning by absorption a "personal injury" The employe, in 
 the Johnson case, had been absorbing lead poisoning during his occu- 
 pation for a period of twenty years, eight months of which period were 
 within the time that the Workmen's Compensation Act was effective. 
 Finally, he became incapacitated for work by reason of the lead poison- 
 ing, and it was held to be a "personal injury" under the act. The Su- 
 preme Judicial Court held that the Board was right in its findings that 
 lea^ poisoning was a "personal injury;" that the date of such personal 
 injury was the day upon which the employe first became incapacitated 
 for work; and that said personal injury arose out of and in the -course 
 of Johnson's employment. The court referred to its decision in the Hurle 
 case as more fully covering its reasons for deciding that injuries other 
 than by visual contact or direct lesion are within the scope of the com- 
 pensation statute. 
 
WORKMEN'S COMPENSATION LAW 125 
 
 Each hand should be considered separately. The insurer also raised 
 a question as to the right of the Board to award specific compensation 
 for each hand separately. The court held, however, that each hand should 
 be considered separately, and the specific compensation due "in addition 
 to all other compensation" awarded on that basis. 
 
 Finding that normal use of the hand was wholly gone equivalent to 
 decision that hand is incapable of use. Meley, the employe, received a 
 serious injury to the right hand by reason of which that member was 
 permanently disabled; also, the little finger of the left hand was so injured 
 as to be incapable of use. The Board awarded compensation on account 
 of total incapacity for work, and also ordered the insurer to pay specific 
 compensation on account of total incapacity for work, and also ordered 
 the insurer to pay specific compensation for sixty-two additional weeks, 
 fifty weeks on account of the injury to the right hand and twelve weeks 
 because of the incapacity for use of the little finger of the left hand. 
 
 Injury to employe while engaged in performing the work that he 
 was hired to do covered by the statute. The court held, in the Howard 
 case, that the injury to the employe, who was engaged in trimming a 
 tree on church property, having no connection with the work of the sub- 
 scriber, was covered, since "Howard was employed to trim trees, and was 
 to receive his orders from the company through Kennedy. It was no 
 part of his business to inquire into the right of the company to trim 
 any particular tree. He was to receive his orders from Kennedy and to 
 obey them. At the time he was hurt he was doing what he had been hired 
 to do." Kennedy, the foreman, also was the tree warden of the town 
 of Stoughton, and ordered the employe to trim the tree upon which the 
 injury occurred. The insurer claimed such employment was "casual" 
 and not "in the usual course of the trade, business, profession or occu- 
 pation" of the company. 
 
 Death results from the Injury when Chain of Causation is not broken 
 by a New Intervening Act. In the Burns case the court held that the 
 death of the employe from septicaemia was due to the injury, since no 
 new intervening cause had broken the chain of causation connecting the 
 injury with death. 
 
 Death results from the injury when chain of causation is not broken 
 by a new intervening act. In the Burns case the court held that the 
 death of the employe from septicaemia was due to the injury, since no 
 new intervening cause had broken the chain of causation connecting the 
 injury with death. 
 
 Additional compensation for specific injury ceases at death. The 
 employe, in the Burns case, had suffered the permanent incapacity of 
 both legs by reason of the injury, and his dependent claimed that the 
 "additional compensation" due therefor should continue until the end of 
 the period of one hundred weeks, as provided by the statute. The court 
 held that "this special compensation ceases with the death of the person 
 injured," and that "it is a right perculiar to himself, not created for the 
 benefit of his dependents." 
 
126 STATE DEPARTMENT OF LABOR 
 
 Additional compensation on account of specific injuries may not be 
 deducted when death ensues. The court held, in the Nicholas case, that 
 the "additional compensation" paid the employe, before death, on account 
 of the specific injury to the third finger of his right hand, should not be 
 deducted from the compensation awarded his widow. 
 
 Serious and willful misconduct defined. The court, in the Burns case, 
 defines serious and willful misconduct, as follows: 
 
 Serious and willful misconduct is much more than mere negligence, 
 or even than gross or culpable negligence. It involves conduct of a quasi- 
 criminal nature, the intentional doing of something either with the 
 knowledge that it is likely to result in serious injury or with a wanton 
 and reckless disregard of its probable consequences. 
 
 Serious and willful misconduct by employe must be a deliberate act. 
 In the Nickerson case the court held, with the Industrial Accident Board, 
 that his decision to continue his work as a whitewasher, instead of waiting 
 until the machinery had shut down, was "more like a sudden thought than 
 a wilful act. It seems that it should fairly be regarded as a minor trans- 
 gression, at most, from his standpoint, and not as 'serious and willful 
 misconduct.'" The court adds: 
 
 "The fact that the injury was occasioned by the employe's disobedi- 
 ence to an order is not decisive against him. To have this effect, the dis- 
 obedience must have been wilful, or, as was said by Lord Loreburn, in 
 Johnson vs. Marshall Sons & Co., Ltd. (1906), A. C. 409, 411, 'deliberate, 
 not merely a thoughtless act on the spur of the moment'." 
 
 Mother and sister having no other source of income are wholly de- 
 pendent upon the employe. In the Caliendo case the Supreme Judicial 
 Court affirmed the findings of the Board by which total dependency com- 
 pensation was awarded the mother and sister of the employe, who had 
 no other source of income except his earnings. 
 
 Permanently disabled employe, receiving partial compensation, en- 
 titled to total incapacity compensation during shutdown period. The court 
 held, in the Septimo case, that the employe was entitled to compensation 
 on the basis of total incapacity for work during a certain period of time, 
 while the plant in which he had been furnished, employment was shut 
 down. 
 
 Signing of settlement receipt does not bar proceedings by employe to 
 determine right to reimbursement on account of expenditure for medical 
 services. The insurer objected to the taking of jurisdiction by a com- 
 mittee of arbitration in the case of Ducy vs. American Mutual Liability 
 Insurance Company, claiming that the signing of a settlement receipt by 
 him acted as a bar to proceedings to determine his right to obtain payment 
 of the amount expended for medical services under the statute. The com- 
 mittee ruled that it had jurisdiction, and awarded the employe the sum 
 of $18 to cover his expenditure for medical services under the statute, 
 
 Insurer question right to reopen case after approval of settlement 
 receipt. It was held, in Jones vs. Fidelity and Deposit Company of Mary- 
 
WORKMEN'S COMPENSATION LAW 127 
 
 land, that the right of an employe to further compensation was not "barred 
 by the signing of a settlement receipt, if there was evidence of a re- 
 currence of incapacity for work by reason of the injury. 
 
 Additional compensation on account of specific injuries may not be 
 deducted when death ensues. The court held, in the Nichols case, that 
 the "additional compensation" paid the employe, before death, on account, 
 of the specific injury to the third finger of his right hand, should not be 
 deducted from the compensation awarded his widow. 
 
 The language of the court, in connection with the Nicholas case, is 
 significant: 
 
 "The statute not having been designed to promote but to decrease 
 the opportunity for unnecessary litigation, its purpose will be best sub- 
 served if plain words are given their ordinary signification; and no pro- 
 vision being found in section 6 for any deduction of this amount, the 
 widow as the sole dependent is entitled to compensation from the date 
 of the accident." 
 
 S. W. Rep. 912; 000 Tex. Civ. App. 000. 
 
 A woman, part of whose work was to clean certain machinery in a 
 factory, finding the guard removed from another part of the machinery 
 which it was not her duty to touch, proceeded to clean it. While she was 
 cleaning it the machinery started, and she was injured. It was held 
 that the accident arose out of the employment and compensation was 
 awarded. Greer vs. Lindsay Thompson (1912), 46 Ir. L. T. 89; 5 B. W. 
 C. C. 586. 
 
 Where an agent having sole charge of the preparation and exhibition 
 of cumbersome and complicated machinery calls to his assistance one 
 who in good faith enters upon such work, the person so employed is not 
 a volunteer or trespasser, but for the time being assumes the relation 
 of master and servant. (EL.) Maxson vs. J. I. Case Threshing Machine 
 Co., 116 N." Rep. 281; 81 Nebr. 546. 
 
 Where blasting could not be safely done in a mine while mining was 
 in progress, and it was the custom, when a miner left before quitting 
 time, for his mate to fire off his blast, it was held that the plaintiff was 
 not a volunteer in firing the blast of his fellow miner, according to such 
 custom. (E. L.) McHenry Coal Co. vs. Render, 104 S. W. Rep. 99G; 
 31 Ky. Law Rep. 1274. A miner who is directed to assist the operator 
 of a trip hammer is not a mere volunteer in assisting the operator to 
 remove a die. (E. L.) B. F. Avery & Sons vs. Cottrill's Guardian, 107 
 S. W. Rep. 332 ; 32 Ky. Law -Rep. 914. A person employed by a purchaser 
 of motors to inspect them before acceptance, who assisted the seller's 
 employe in making a test, was not a mere volunteer. (E. L.) Johnson 
 vs. E. C. Clark Motor Co., 139 N. W. Rep. 30; 173 Mich. 277. 
 
 Volunteers: Acting Without Scope of Authority. 
 
 Where the plaintiff, a boy of sixteen, employed to remove material 
 from a planing machine, volunteered, without suggestion or leave from 
 anyone, to oil the machine, and he had been warned that it was danger- 
 
128 STATE DEPARTMENT OF LABOR 
 
 ous to do so, it was held that the master was not liable to him for an 
 injury received while thus engaged. (E. L.) Floyd vs. Kentucky Lumber 
 Co., 66 S. W. Rep. 501; 23 Ky. Law Rep. 1914. 
 
 Whatever a workman does under competent authority for the com- 
 fort and convenience of his fellow workmen is presumed to be for his 
 employer's benefit, where such work is not so foreign to his employment 
 that he would be justified in refusing to do it. (E. L.) Broderick vs. 
 Detroit Union R. Station & Depot "Co., 22 N. W. Rep. 802 ; 56 Mich. 261. 
 It is not always essential that an employe actually be engaged in per- 
 forming specific duties in order to make applicable rules of law determin- 
 ing his rights and his employer's liabilities, when he is injured while 
 actually engaged in the performance of his duties. (E. L.) Louisville 
 & Nashville R. R. Co. vs. Chamblee, 54 So. R. 681; 000 Ala. 000. The 
 scope of a servant's duties is determined by what he was employed to 
 do and what he actually did with his employers' knowledge and consent, 
 and an employe who was performing the same services he was in the 
 habit of performing when he was injured, is not a volunteeer in perform- 
 ing such duties. (E. L.) Dixon vs. Chiquola Mfg. Co., 68 S. E. Rep. 643; 
 86 S. C. 435. A workman who, under orders of his superior, engages in 
 some other than his regular employment, is not, on that ground, deemed 
 to be a volunteer, to whom the duty of exercising reasonable care is not 
 owing. (E. L.) Laragay vs. East Jersey Pipe Co., 72 Atl. Rep. 57; 000 
 N. J. Law 000; rev'g, 68 Atl. Rep. 1073; 000 N. J. Law 000. Where the 
 servant acts in obedience to an express order of the master, the master 
 cannot escape liability for the consequences of the servant's acts, on the 
 ground that they were outside the duty for which he was employed. 
 (E. L.) Rimmer vs. Wilson, 93 Pac. Rep. 1110; 000 Col. 000. An employe 
 who obeys the order of the manager of his employer and does necessary 
 work in defendant's service, can not be considered in a legal sense as one 
 engaged in work beyond the scope of his employment. (E. L.) Bonnin 
 vs. Town of Crowley, 36 So. Rep. 842; 112 La. 1025. 
 
 An injury received by a servant in attempting to procure a tool neces- 
 sary in his work, is in the line of his employment. (E. L.) Conley vs. 
 Lincoln Foundry Co., 14 Pa. Sup. Ct. 626. 
 
 An employe engaged as a planer in a saw mill was held to be in the 
 discharge of his duty when the machine was stopped by a board and he 
 stepped to one side of it to ascertain the cause of the difficulty and 
 stepped into a hole in the floor. (E. L.) Baker vs. Duwamish Mill Co., 
 86 Pax. Rep. 167; 43 Wash. 149. 
 
 Where a master divided his business into departments and required 
 employes idle in their own departments to help in some other department, 
 and the foreman of a department received an employe of another depart- 
 ment and accepted his services and directed him, it was held that the 
 employe was not a volunteer, but was engaged in the performance of his 
 duties. (E. L.) Hugo, Schmeltzer & Co. vs. Paiz, 128. 
 
 A freight conductor, on reaching, late at night, a station situated one 
 mile from a trestle, was informed by the road superintendent that, owing 
 to a heavy rain, it was likely that two culverts would be in a dangerous 
 
WORKMEN'S COMPENSATION LAW 129 
 
 condition, one of which was half way between the station and the trestle, 
 and the other beyond the trestle, but nothing was said about the trestle. 
 The conductor detached the engine and with the engineer, fireman, one 
 brakeman and the road superintendent, started to examine the culverts. 
 The first was found to be all right, when they proceeded to the second, 
 and on attempting to cross the trestle, it gave way, and the conductor 
 was killed. It was held that considering the emergency and that the 
 conductor was exercising such ordinary care as was necessary for the 
 safe movement of the train, he was acting within the scope of his em- 
 ployment. (E. L.) Terre Haute & I. R. Co. vs. Fowler, 56 N. E. Rep. 
 228; 154 Ind. 682; 48 L. R. A. 531. 
 
 The Factory Act of Kansas (Laws 1903, ch. 356, sec. 4), providing 
 that every person owning or operating any manufacturing establishment 
 in which machinery is used, shall furnish and supply for use therein 
 certain specified safeguards for machinery and appliances, is not limited 
 in application to workmen engaged in their ordinary duties, but is desig- 
 nated to protect persons employed in manufacturing establishments while 
 in the performance of any duty, whether ordinary and general, or ex- 
 ceptional and occasional. (E. L.) Caspar vs. Lewin, 109 Pac. R. 657; 
 82 Kans. 604. 
 
 Where a logging company also ran a railroad, and the plaintiff, an 
 employe of the company, was directed to act as a brakeman on the rail- 
 road, it was held that he was an employe of both the railroad and the 
 logging company, as respects injuries he received while acting as such 
 brakeman. (E. L.) Barrow vs. B. R. Lewis Lumber Co., 95 Pac. Rep. 
 682; 14 Idaho, 698. 
 
 While resting, under a rule permitting him to do so, an employe may 
 not needlessly wander from the proper sphere of his work into other 
 departments of the establishment and be within the scope of his employ- 
 ment. But if no resting place is prescribed and no boundaries fixed, he 
 may use his discretion in selecting a place to rest and may with due 
 circumspection occupy any of the vacant places near his machine and 
 in touch with his work. (E. L.) Pittsburg Vitrified Pav. & Build. Brick 
 Co. vs. Fisher, 100 Pac. Rep. 507; 79 Kan. 576. 
 
 Serious and Wilful Misconduct: Intoxication. 
 
 A workman was employed to oil machinery and was strictly forbidden 
 to oil it when it was in motion. He had been seen to do so, and warned 
 against the practice. He did so again and received injuries from which 
 he died. It was held that the accident arose out of the employment and 
 compensation was awarded. Mawdsley vs. West Leigh Colliery Co. (1911) 
 5 B. W. C. C. 80. The decision in the last-mentioned case was on the 
 ground that, as the accident resulting in death, the provisions of the 
 amended British Act relating to serious and wilful misconduct did not 
 apply. 
 
 In the expression "serious and wilful misconduct," the word "serious" 
 applies to the misconduct itself and not to the actual consequence of it; 
 and the word "wilful" imports that the conduct was deliberate and not 
 
130 STATE DEPARTMENT OF LABOR 
 
 merely a thoughtless act on the spur of the moment. Johnson vs. Marshall, 
 Sons & Co. (1906), 94 L .T. 828; 8 W. C. C. 10. 
 
 Proof of negligence merely is not sufficient to maintain a charge of 
 serious and wilful misconduct. Rees v. Powell Duffryn Steam Coal Co. 
 (1900), 4 W. C. C. 17. A boy working at a machine used for cutting 
 screws leaned over a circular saw which was in motion, to pick up an 
 uncut screw which had fallen from its place and in doing so injured his 
 finger. He had been told frequently not to put his hand across the saw. 
 It was held that there was evidence of negligence, but not of serious or 
 wilful misconduct which would preclude the boy from recovering com- 
 pensation. Reeks vs. Kynock (1901), 4 W. C. C. 14. 
 
 If a workman unnecessarily breaks an express and emphasized order 
 made solely for his own protection, and which he fully understands and 
 appreciates, he is guilty of serious and wilful misconduct. Jones vs. 
 London & South Western Ry. Co. (1901), 3 W. C. C. 46. Deliberate and 
 intentional disobedience on the part of a workman to an oft-repeated 
 order whereby he and his fellow workmen are placed in danger, is serious 
 and wilful misconduct. It is no answer to this defense that the workman 
 believed the course he was adopting when disobeying his instructions 
 was not a dangerous one. Brooker vs. Warren (1907), 23 T. L. R. 201; 
 9 W. C. C. 26. In the last-mentioned case a fatal accident was caused 
 by the act of the deceased in removing a guard from a circular saw. 
 Compensation was refused. 
 
 A workman was cautioned by a foreman not to use a freight elevator 
 until he was acquainted with it. He, nevertheless, attempted to use it 
 and later in the day was found dead, jammed between the side of the 
 elevator and the floor. There was no evidence that he had not been in- 
 structed in the use of the elevator and that he had not had an opportunity 
 of becoming acquainted with it. It was held that the employers had not 
 discharged the onus resting upon them to show that the deceased had 
 been guilty of serious or wilful misconduct, and therefore compensation 
 was awarded. Granick vs. British Columbia Sugar Refinery Co. (1910), 
 15 B. C. R. 193; 4 B. W. C. C. 452, rev'g (1909), 14 B. C. R. 251; 2 B. W. 
 C. C. 511. 
 
WORKMEN'S COMPENSATION LAW 131 
 
 Death Benefit and Methods of Procedure 
 
 Under the provisions of the Nebraska compensation law if the de- 
 ceased employe leaves one or more dependents wholly dependent upon 
 his earnings for support at the time of the accident causing death, 
 the compensation shall be 50 per cent of the wages received at the time of 
 the injury, subject to a minimum of $5 per week and a maximum of $10 
 per week, for a period not to exceed 350 weeks from the date of the acci- 
 dent causing the injury. These several weekly payments may be com- 
 muted to one or more lump sum payments if the district court so orders. 
 If the district court declines to direct the several weekly payments to be 
 commuted to one or more lump sum payment, then the dependents shall 
 receive the amount of compensation due them in weekly payments con- 
 tinuing over a period of 350 weeks, or practically seven years. If the 
 employer has carried his own risks under the law, then the question of 
 the solvency of the employer during the period for which he is to pay com- 
 pensation is a matter in which the dependents are vitally interested. The 
 same would be true of an insurance company carrying the risk. It is the 
 purpose of the compensation law that the compensation shall be payable 
 as wages, and in this manner liability for compensation is incurred. In 
 order to protect the dependents against the possible insolvency of the em- 
 ployer or the insurance company during the larger period of time, and 
 at the same time more fully carry out the intent and purpose of the law, 
 the following amendment is suggested to the compensation law: 
 
 Sec. . Where payment of the compensation in the event of death 
 is made to dependents, the payment shall be made in weekly installments 
 corresponding in amount to the weekly earnings of the employe, subject 
 to a maximum of $20 per week. The total number of payments may be 
 commuted to one or more lump sum payments by the district court upon 
 the application of either party. 
 
 This does not mean a greater liability on the part of the employer; 
 it merely shortens the period within which the total indemnity becomes 
 payable by reason of the increase in the amount of the weekly com- 
 pensation payments. 
 
 There is produced below the various sections of the law having to do 
 with the methods of procedure in litigating claims under the compensa- 
 tion law. That a system of negotiation has been substituted for the old 
 method of litigation is apparent, and will be the case until some adequate 
 method of administration is provided: 
 
 Sec. 128. In case of a dispute over, or failure to agree upon a claim 
 for compensation between employer and employe, or the dependents of 
 the employe, the claim may be submitted to arbitration in such manner 
 
132 STATE DEPARTMENT OF LABOR 
 
 or method as may be mutually agreed upon, or either party may submit 
 the claim, both as to the question of fact, the nature and effect of the 
 injuries, and the amount of compensation therefor, according to the sched- 
 ule herein provided, to the district court of the county which would have 
 jurisdiction of a civil action between the parties, which court shall have 
 authority to hear and determine the cause as a suit in equity and enter 
 final judgment therein determining all questions of law and fact in ac- 
 cordance with the provisions of this 'article, which judgment shall be final 
 and conclusive unless reversed or modified on appeal or otherwise modified 
 pursuant to the provisions of this article. 
 
 Sec. 130. Procedure in cases of dispute shall be as follows: Either 
 party may file in the district court a verified petition setting forth the 
 names and residences of the parties and the facts relating to the employ- 
 ment at the time of the injury, the injury in its extent and character, the 
 amount of wages being received at the time of injury, the knowledge of 
 or notice to the employer of the occurrence of said injury and such other 
 facts as may be necessary for the information of the court, and also 
 stating the matter or matters in dispute and the contention of the pe- 
 titioner with reference thereto. 
 
 Upon the filing of such petition a summons shall issue and be served 
 upon the adverse party, as in civil causes, together with a copy of the 
 petition. Return of service shall be made within four days from the is- 
 suance of the summons. Within seven days after the return of such 
 summons, the party upon whom the same is served shall file an answer to 
 said petition, which shall admit or deny the substantial averments of the 
 petition, and shall state the contention of the defendant with reference 
 to the matters in dispute, as disclosed by the petition. The answer shall 
 be verified in like manner as required for a petition. At the expiration 
 of the time fixed for filing answer the court shall proceed to hear and 
 determine the cause without delay and from such judgment shall ba 
 prosecuted in accordance with the general laws of the state regulating 
 appeals and actions at law except that such appeal shall be perfected 
 within thirty days from the entry of the judgment and the cause shall 
 be advanced for hearing in the supreme court so as to bring said cause 
 on for argument before such court within sixty days from the filing of 
 the appeal; and said supreme court shall render its judgment and opinion 
 in such cases within thirty days after submission. 
 
 Sec. 131. The amounts of compensation payable periodically under 
 the law, either by agreement of the parties, or by decision of the. court, 
 may be commuted to one or more lump sum payments, except compensa- 
 tion due for death and permanent disability. These may be commuted 
 only with the consent of the district court. 
 
 Sec. 132. All settlements by agreement of the parties and all awards 
 of compensation made by the court, except those amounts payable peri- 
 odically for six months or more, shall be final and not subject to read- 
 justment. 
 
 Sec. 133. All amounts paid by an employer or an insurance company 
 
WORKMEN'S COMPENSATION LAW 133 
 
 carrying such risk, as the case may be," and received by the employe 
 or by his dependents, by lump sum payments, shall be final, but the amount 
 of any agreement or award payable periodically for more than six months 
 may be modified as follows: 
 
 (a) At any time by agreement of the parties; 
 
 (b) If the parties cannot agree, then at any time after six months 
 from the date of the agreement or award, an application may be made 
 to the court by either party on the ground of increase or decrease or in- 
 capacity due solely to the injury, or that the condition of a dependent has 
 changed as to the age or marriage, or by reason of the death of a depend- 
 ent. In such cases the same procedure shall be followed as in section 
 130 of this chapter in case of disputed claim for compensation. 
 
 Sec. 134. At any time after the amount of any award has been 
 agreed upon by the parties, or found and ordered by the court, a sum 
 equal to the present value of all future installments of compensation 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 or by the 
 insurance company carrying such risk, as the case may be, to any savings 
 bank or trust company of this state, in good standing, and such sum 
 together with all interest thereon, shall thereafter be held in trust for 
 the employe or the dependents of the employe who shall have no furthr 
 recourse against the employer. The payment of such sum by the em- 
 ployer, evidenced by the receipt of the trustee to be filed with the insur- 
 ance commissioner, 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 employe or the dependents of the deceased em- 
 ploye, as the case may be. 
 
 Sec. 135. In case of death, where no executor or administrator is 
 qualified, the said court shall, by order, direct payment to be made to 
 such persons as would be appointed administrator of the estate of such 
 decedent, upon like terms as to bond for the proper application of com- 
 pensation payments as are required of administrators. 
 
WORKMEN'S COMPENSATION LAW 135 
 
 To Whom the Law Applies 
 
 The law will apply to every employer in this state employing five or 
 more employes, except those employing household domestic servants, 
 farm laborers and railroad companies doing interstate commerce, who are 
 subject to Congress and not within the provisions of this law. However, 
 other employers and employes not included in this act may be their joint 
 election, file with the Insurance Commissioner, and accept the provisions 
 of Part II. 
 
 Part I is so framed as to penalize both the employer and employe 
 if they do not elect to remain within the provision of Part II, as follows: 
 If an employer is sued for damages he can not avail himself of the de- 
 fenses of assumption of risk, fellow servant doctrine, contributory negli- 
 gence, which means the loss of the old time common law defenses. Should 
 an employe elect for litigation as against compensation the employer 
 can use these three defenses when suit is brought against him, and all 
 actions at law brought under Part I of this act, the burden of proof to 
 establish wilful negligence of the injured employe shall be on the de- 
 fendant 
 
 Part II. Every employer (other than those exempted) automatically 
 comes within the provisions of the Workmen's Compensation Law and will 
 be governed by its provisions unless the employer posts, and thereafter 
 keeps posted, in a conspicuous place about the place or places where his 
 workmen are employed, a written or printed notice of his election not to 
 be bound by Part II, and he must file a duplicate of such posted notice 
 with the Insurance Commissioner, and unless every employe gives a writ- 
 ten or printed notice to his employer of his refusal to be bound by Part 
 II and files a duplicate proof of the services of such notice, with the 
 Insurance Commissioner, he will automatically come within the provisions 
 of the law, and be governed by its provisions. 
 
 If an employer has given notice not to accept the provisions of Part 
 II he may later waive such notice by posting in a conspicuous place a 
 written or printed notice of withdrawal and file a duplicate notice with 
 the Insurance Commissioner. 
 
 If an employe has given notice not to accept the provisions of Part 
 II, he may later waive such notice by a notice in writing directed to the 
 employer and serve same upon his employer or his agent, and file a dupli- 
 cate with the Insurance Commissioner. The waiver will not be effective 
 until noon of the fifth day after filing the required notice with the Insur- 
 ance Commissioner. 
 
 Printed blank forms for making the elections under the law will 
 be furnished by the Commissioner of Insurance or the State Department 
 of Labor upon application. The following forms have been approved by 
 the attorney general for use in the administration of the compensation 
 law: 
 
136 STATE DEPARTMENT OF LABOR 
 
 Employer's Notice of Acceptance 
 
 To the Employes of the Undersigned, and the Nebraska Commissioner of Insurance: 
 
 You and each of you are hereby notified that the undersigned elects to accept 
 the terms, conditions and provisions to provide, secure and pay compensation to 
 employes of ithe undersigned for injuries received as provided in the act of the 
 Thirty-third session of the Nebraska legislature, known as "The AVorkmen's Com- 
 pensation Law of 1913." approved April 13. 1913. and effective December 1, 1914, 
 and acts amendatory thereof, and that the undersigned elects to pay damages for 
 personal injuries received by such employe under the terms, conditions and pro- 
 visions of said "Workmen's Compensation Law of 1913," and acts amendatory 
 thereof. 
 
 STATE OF NEBRASKA ~] 
 
 r 
 
 County of J 
 
 The undersigned being duly sworn deposes and says that a true, correct and g 
 verbatim copy of the foregoing notice was on the day of 191 , 
 
 Posted at 
 
 (state where posted) 
 
 Subscriber and sworn to before me by 
 
 this day of 191 
 
 (SEAL) Notary Public. 
 
 \ 
 
 Employe's Notice of Acceptance 
 
 To the Employer of the Undersigned, and the Nebraska Commissioner of Insurance: 
 
 You and each of you are hereby notified that the undersigned makes voluntary 
 election to accept the terms, conditions and provisions to provide, secure and pay 
 compensation to employes for injuries received as provided in the act of the Thirty- 
 third session of the Nebraska legislature, known as "The Workmen's Compensation 
 Law of 1913," approved April 13, 1913, and effective December 1, 1914, and acts 
 amendatory thereof, and that the undersigned elects to liquidate claims for per- 
 sonal injuries received by the undersigned as an employe of 
 
 under the terms, conditions and provisions of said "Workmen's Compensation Law 
 of 1913," and acts amendatory thereof. 
 
 STATE OF NEBRASKA, 1 
 
 L,: 
 
 County of J 
 
 The undersigned being duly sworn deposes and says that a true, correct and 
 verbatim copy of the foregoing notice was on the day of. 191 
 
 served upon 
 
 (employer's name) 
 
 Subscribed and sworn to before me by 
 
 this day of 191 
 
 (SEAL) Notary Public. 
 
WORKMEN'S COMPENSATION LAW 137 
 
 Employer's Notice to Reject 
 
 To the Employes of the Undersigned, and the Nebraska Commissioner of Insurance: 
 You and each of you are hereby notified that the undersigned rejects the terms, 
 conditions and provisions to provide, secure and pay compensation to employes of 
 the undersigned for injuries received as provided in the act of the Thirty-third 
 session of the Nebraska legislature known as the "Workmen's Compensation Law 
 of 1913," approved April 13, 1913, and effective December 1, 1914, and acts amendatory 
 thereof; and that the undersigned elects to pay damages for personal injuries re- 
 ceived by such employe under the common law and statutes of this state as modi- 
 fied by the act of the legislature of 1913, known as the "Workmen's Compensation 
 Law of 1913," and acts amendatory thereof. 
 
 By. 
 STATE OF NEBRASKA, 1 
 
 County of.. 
 
 The undersigned being duly sworn deposes and says that a true, correct and 
 verbatim copy of the foregoing notice was on the day of 191 , 
 
 Posted at 
 
 (state where posted) 
 
 Subscribed and sworn to before me by 
 
 this day of 191...... 
 
 (SEAL^ Notary Public. 
 
 Employe's Notice to Reject 
 
 To and the Nebraska Commissioner of Insurance: 
 
 (name of employer) 
 
 You and each of you are hereby notified that the undersigned hereby elects 1 to 
 reject the terms, conditions and provisions of an act for the "payment of compen- 
 sation for personal injuries, known as "The Workmen's Compensation Law of 1913'" 
 and acts amendatory thereof, approved April 13, 1913, and effective December 1, 
 1914, and that the undersigned elects to rely upon the common law for the right to 
 recover for personal injury which the undersigned may receive, if any, growing out 
 of and arising from the employment while in line of duty for my employer above 
 named. 
 
 Dated this day of - 19L 
 
 STATE OF NEBRASKA, 1 
 
 County of J 
 
 The undersigned being duly sworn deposes and says that a true, correct and 
 verbatim copy of the foregoing notice was on the day of 191 , 
 
 served upon ~ 
 
 (employer's name) 
 
 Subscriber and sworn to before me by - 
 
 this day of.- 191 
 
 (SEAL) Notary Public. 
 
138 STATE DEPARTMENT OF LABOR 
 
 First Report of Accident 
 
 Report No. 1, or First Report of the Accident, should be filed with the 
 State Department of Labor immediately following the accident. Report 
 No. 1 is reproduced below, properly filled in. These blanks may be had 
 upon application to the State Department of Labor. 
 
 No. 1 First Report of Accident . 
 
 WORKMEN'S COMPENSATION LAW OF 1913 
 
 STATE OF NEBRASKA 
 
 STATE DEPARTMENT OF LABOR 
 
 To be filed with the Commissioner of Labor within five days after occurence of accident. 
 
 TO THE COMMISSIONER OF LABOR: 
 
 On the 26 day ol *?. 191.5. 
 
 at about .9r?30- o'clock .?.t m., 
 
 M Richard. Hoe 
 
 ($amt of person Injurtd) 
 
 who was at that time in the employ of....l9.^J*>?J>?L*>?.j , 
 
 .19M..Harnex.-.St, 
 
 (Psrton, firm or corporation) 
 
 in the city ot dnatta : county 
 
 of rcugla* ,..._......- , in the state of Nebraska, while in the 
 
 furtherance of hi?. duties as a result of such employment met with the following accident...... _ 
 
 Such accident was such as to prove.... .tJporM7. 
 
 (Afctow 
 
 If not fatal; the Injured will, in my opinion, be able to perform his usual duties as.. .repairer 
 
 (.Kind of > 
 
 within a period of .t*?9 weeks from the above date and has at this time been 
 
 unable to perform such duties for a period ol 9*.... --days er wtclw. 
 
 Employer was first notified of h:l8. -.accident on .Kay..a6..... 191.fr. 
 
 The following persons witnessed said accident: 
 
 Name..,. J^..W^.anltB. , Address....."...1916-fiaro9y.JS.t* 
 
 Name Jo&n ;;ppe T .___, ... Ad dress *?.^..? a y..?.V. 
 
 This is to certify that the' above is a true and coirect report to the best of my knowledge and belief. 
 
 Signed this -,Mi* , day of..,, .a^L j\. o, 191.5*. 
 
 ra Motor. Co., 
 
 (firm, ptaon or corporafifny 
 
 g^ %f loglaacl Casualty Co., 
 
 """iS^y"*.g 
 
 Adjusters. 
 
WORKMEN'S COMPENSATION LAW 139 
 
 Second Report of Accident 
 
 Report No. 2, or the Second Report of the Accident, should be filed 
 with the State Department of Labor as soon as the degree and nature 
 of the injury has been ascertained and a release or settlement has been 
 secured or reached. 
 
 No. 2 Second Report of Accident <^^ 
 
 WORKMEN'S COMPENSATION LAW OF 1913 
 
 FINAL REPORT OF ACCIDENT AND SETTLEMENT 
 
 ( To be filed with the Commissioner of Labor, Lincoln, Nebraska, within ten days after final settlement.) 
 
 TO THE COMMISSIONER OF LABOR: 
 
 1. Name of Employer Ford..M(j tpr..C.Q., _ 
 
 2. Address 1.91$..Harney. Street,. $*&*.. _ Nebraska 
 
 3. Kind of Business_...AU.tam.0.toilB8... - _ ^ _ 
 
 EMPLOYE: 
 
 4. Name RlWxaid.Jtofl _ .. ......... . 
 
 o. Address...252.9..pecatur Street Qmana Nebraska 
 
 6. Age....23. 7. Married or Single Slngle_ & Sex...Male _ 
 
 9. How long Employed? 3..5?.?5. 8 . 10.. General Duties..??.?.^.?...... 
 
 11. How long in this particular service? 
 
 12. Skilled in this work?...Xeft 13. Hours per day worked:../! ; 
 
 14. Day or night work Day. ...; 
 
 THE MACHINE, APPLIANCE OR THING IMMEDIATELY CAUSING THE ACCIDENT: 
 
 15. What was it? ?.?*A 8 
 
 16. Was it in good working order?..T~r. ...... 17. Was It safeguarded?...rr.Trrr_ ___ 
 
 18. Was it inspected?..-- ._ .............. 19. By whom?.. 
 
 20. How did the accident happen? ....... fl^.Wi_90JU^_MftA3L.Wa,V.iAJKl.ft.fi3( _____ 
 
 CONTRIBUTING CAUSES: 
 
 21. Carelessness of injured person _____ ___ . ____ .....-,,. 
 
 22. Negligence of a fellow workman 
 
 23. Violation of rules... ___________ ........-- ___ . _____ . _____ . _____ .,..... ____ _ ___ ..... __ ...^..., m . > . 
 
 THE INJURY: 
 
 24. Nature and extent.....^?."^. 1 .?.?. 
 
 25. Was surgical aid rendered?.. I??. ..... _ 26. When? ._At..pnce ...... 
 
 27. By whom ....... PT....E. . R.,..Pptt er... 28. Where?.._.*ft. -4Q?. to.r '.8 . of J ice. 
 
 29. Where was injured employe taken?. ...... Returnea . to. W<jr]t. 
 
 30. Did injury result in death? 
 
 * 
 
 31. If DEATH resulted, was deceased a citizen of the United States?__-s.r?t?r?. ___________ j?. 
 
 32. If an ALIEN, give nationality, place of birth, parentage and names and addresses of dependents ol 
 deceased employe ~....J.r.-.;..r.7./.v^..~- .......... ----------------------- __ ________ 
 
 (THE COMPENSATION: 
 
 33. Date of injury Msy...^*. 19l5.... 34. Compensation began....rrTT~T. I91~. 
 
 35. Disability ended...M. a y.. 2 <5>. 191.5.'... 36. Average weekly wage $i<$3&. 
 
 37. Amount agreed upon as weekly compensation $....~.;. 1 ... ~.':. 
 
 38. Total compensation paid employe $...r-.r.r~ 
 
 39. Hospital and medical services paid $....<^PP 
 
 40. Ambulance fee paid $.....~~-rrr. 4L Nurse fees paid $...Trrr 
 
 This report dated at _ Palia A Netir. . .....fer.4..MO.tQr...CO., .. 
 
 l^mnfmm^H 
 
 Uay 27, 191 5. B v New Engiand Casualty Co. ^ 
 
 ""aey 4 Kennedy, 
 Adjusters. 
 
140 
 
 STATE DEPARTMENT OF LABOR 
 
 Receipt for Partial Payments 
 
 The following form of receipt has been approved by the attorney 
 general for use in showing the receipt of partial payments under the 
 Compensation Law. A duplicate copy should be filed with the State De- 
 partment of Labor. These blanks may be had upon application to the 
 State Department of Labor: 
 
 State of Kebraska 
 
 State Department of Labor 
 
 RECEIPT FOR PARTIAL PAYMENT 
 
 Under the Nebraska "Workmen's Compensation Law of 1913" 
 
 .101. 
 
 RECEIVED OF 
 
 the slim of Dollars ($ ) 
 
 said amouut being such part of my weekly wages for a period of ~ 
 
 from the day of _ 191 , to the 
 
 day of 101 as I am entitled to under the Nebraska 
 
 "Workmen's Compensation Law of 1913," on account of an accident sustained by 
 
 me on or about the day of. 191 , while in the 
 
 employ of 
 
 (Name) 
 
 (Address) 
 
 Witnesses: 
 
 STATE OF NEBRASKA ^ 
 
 Us: 
 
 County of 
 
 being first duly sworn deposes and 
 
 says that on the. day of A. D. 191 , I read the 
 
 above receipt to 
 
 who signed the same, and that before he signed, I correctly interpreted the contents 
 of said receipt from the English language into the 
 
 language to said..._ ...i.ancl the said then 
 
 stated that he fully knew and undersold the contents of said receipt. 
 
 Subscribed and sworn to before me this day of A. D., 191 
 
 (SEAL). _ 
 
 Notary Public in and for County and State Aforesaid. 
 
WORKMEN'S COMPENSATION LAW 141 
 
 Receipt Showing Release and Final Settlement 
 
 The following form has been approved by the attorney general for 
 use in showing a release and final settlement under the Compensation Law. 
 A duplicate copy should be filed with the State Department of Labor. 
 These blanks may be had upon application to the State Department of 
 Labor: 
 
 State of Nebraska 
 Nebraska State Department of Labor 
 
 RELEASE AND FINAL RECEIPT 
 For Compenastion Paid Under the Nebraska Workmen's Compensation L,aw of 1913' 
 
 ..191 
 
 RECEIVED OF.- 
 
 the sum of Dollars ($ > 
 
 making in all, with the weekly payments already received by me, the total sum of 
 
 ($ ) 
 
 such payment being the final payment of Compensation under the Nebraska Work- 
 men's Compensation Law of 1913, and in consideration of which I hereby release 
 
 and forever discharge the said 
 
 heirs, successors and assigns, from any and all actions, causes of action, claims and 
 demands, for, upon or by reason of any damage, loss, injury, suffering and disfig- 
 urement which heretofore has been or which hereafter may be sustained by me in 
 
 consequence of an accident suffered by me on or about the 
 
 day of 101 , while in the employ of 
 
 Witness my hand and seal, this day of 101. 
 
 Witnesses: 
 
 (SEAL) 
 
 STATE OF NEBRASKA 
 County of 
 
 being first duly sworn deposes and 
 
 says that on the day of 191 , he read the 
 
 above receipt to 
 
 who signed the same, and that before signing, he, this deponent, correctly inter- 
 preted the contents of said .receipt from the English language in the 
 
 language to said _...and the said _ then 
 
 stated to this deponent that he fully knew and understood the contents of said receipt. 
 
 Subscribed and sworn to before me this day of A. D., 191. 
 
 (SEAL) 
 
 Notary Public in and for County and State Aforesaid. 
 
142 STATE DEPARTMENT OF LABOR 
 
 The following blank is for use in filing a withdrawal of an election to 
 reject Part II of the compensation law by an employer. These blanks may 
 be had upon application to the State Department of Labor. 
 
 Employer's Withdrawal of Rejection 
 
 To the Employes of the Undersigned, and the Nebraska Commissioner of Insurance: 
 
 You and each of you are hereby notified that the undersigned hereby withdraws 
 
 the election to reject Part II of "The Nebraska Workmen's Compensation Law of 
 
 1913," filed with the "State Insurance Commissioner on or about -191 , 
 
 and eelcts to accept the terms, conditions and provisions to provide, secure and pay 
 compensation to emplayes of the undersigned for injuries received as provided in 
 the act of the Thirty-third session of the Nebraska legislature, known as "The 
 Workmen's Compensation Law of 1913," approved April 13, 1913, and effective Decem- 
 ber 1, 1914, and acts amendatory thereof, and that the undersigned elects to pay 
 damages for personal injuries received by such employe under the terms, conditions 
 and provisions of said "Workmen's Compensation Law of 1913," and acts amendatory 
 thereof. 
 
 By 
 
 STATE OF NEBRASKA / 
 
 - ss. 
 County of ) 
 
 The undersigned being first duly sworn deposes and says that a true, correct 
 and verbatim copy of the foregoing notice was on the day of 191...., 
 
 posted at 
 
 State Where Posted 
 
 By 
 
 Subscribed and sworn to before me by 
 
 this day of 191 
 
 (SEAL) 
 
 Notary Public 
 
 The following blank is for use in filing a withdrawal of an election to 
 reject Part II of the compensation law by an employe. These blanks may 
 be had upon application to the State Department of Labor. 
 
 Employe's Withdrawal of Rejection 
 
 To the Employer of the Undersigned, and the Nebraska Commissioner of Insurace: 
 
 You and each of you are hereby notified that the undersigned hereby withdraws 
 the election to reject Part II of "The Nebraska Workmen's Compensation Law of 
 
 1913," filed with the State Insurance Commissioner on or about 191 , 
 
 and makes voluntary election to accept the terms, conditions and provisions to 
 
 Erovide, secure and pay compensation to employes for injuries received as provided 
 a the act of the Thirty-third session of the Nebraska legislature, known as "The 
 Workmen's Compensation Law of 1913," approved April 13, 1913, and effective Decem- 
 ber 1, 1914, and acts amendatory thereof, and that the undersigned elects to liquidate 
 claims for personal injuries received by the undersigned as an employe of 
 
 under the terms, conditions and provisions of said "Workmen's Compensation Law 
 of 1913." and acts amendatory thereof. 
 
 STATE OF NEBRASKA 
 
 County of 
 
 The undersigned being first duly sworn deposes and says that a true, correct 
 
 and verbatim copy of the foregoing notice was on the day of 191...., 
 
 served upon 
 
 Employer's Name 
 
 Subscribed and sworn to before me by _ 
 
 this day of. 191 
 
 .(SEAL) 
 
 Notary Public 
 
WORKMEN'S COMPENSATION LAW 143 
 
 The General Divisions of the Law 
 
 "Part I" refers to the adjudication of personal injury damage suits 
 in the courts and affects employers and employes who do not "elect" to 
 operate under Part II the Compensation Law. Part I is so framed as 
 to penalize both employer and employe if they elect to retain the com- 
 mon law system based upon negligence of the employer, the object being 
 to encourage everyone to accept the automatic workmen's compensation 
 system as set forth in Part II. 
 
 The Two Options 
 
 All employers of five or more persons, except railroads engaged in 
 interstate commerce and employers of farm labor, domestic servants and 
 "casual workers" are presumed by the terms of the law to have "elected" 
 to come within the provisions of Part II, in the absence of written or 
 printed notice to the contrary. (See Section 12.) 
 
 Any employer may elect to be liable only for those accidents for 
 which through negligence he may be responsible, by posting a notice to 
 this effect in the place where his workmen are employed, but in such cases 
 the employer cannot, when sued for damages on account of the accidental 
 death or injury of an employe, avail himself of either of the following 
 defenses : 
 
 Assumption of risk, 
 
 Fellow-servant doctrine, 
 
 Contributory negligence. 
 
 The loss of these old time and most important common law defenses 
 constitutes the penalty imposed by the legislature upon the employer who 
 elects for litigation under Part I in preference to compensation under 
 Part II. (See Section 3.) 
 
 Employe's Option 
 
 All employes (where the employer is subject to the Act, as shown 
 in Section 6) are likewise presumed to have elected to work under Part 
 II, unless they serve a written notice upon the employer to the contrary, 
 as prescribed in Section 12. 
 
 If an employe elects for litigation as against compensation, the em- 
 ploye is penalized, for in such cases the three defenses above mentioned 
 are available to the employer when suit is brought against him, thereby 
 greatly lessening the employe's chance to recover a judgment. 
 
 It will be noted that the framers of this law have made it a strong 
 inducement to both parties to work together under the Compensation 
 System. If the experience under similar laws in other states is a criterion, 
 few if any of those affected by the Nebraska Act will choose to subject 
 themselves to the uncertainties inherent in the negligence system by re- 
 maining under Part I. 
 
 Method of Making Election 
 
 No affirmative action is required to come under Part II, the law as- 
 
144 STATE DEPARTMENT OF LABOR 
 
 suming that both employer and employe have mutually accepted the Work- 
 men's Compensation System in the absence of notice to the contrary. 
 (See Sections 9 to 13.) 
 
 Total Disability 
 
 For the first 300 weeks the compensation shall be 50% of the regular 
 wages of the injured employe, subject to a maximum weekly payment of 
 $10.00 and a minimum payment of $5.00, except where the wage is less 
 than $5.00 the compensation shall be 100% of wages instead of 50%. After 
 the first 300 weeks, during continuance of total disability, the compen- 
 sation shall be 40% of wages, maximum payment $8.00 and minimum 
 $4.00 per week, for life, except that if the regular wage was less than 
 $4.00, then the compensation shall be the full amount of the wage. (See 
 Section 21, Subdivision 1.) 
 
 Partial Disability 
 
 Where the injured employe is able to work only part of the time 
 or where his injuries are such as to reduce his earning power even though 
 he works full time, the compensation shall be 50% of the difference be- 
 tween his regular wage and the amount received after the injury, subject 
 to a maximum payment of $10.00 a week. Payment for partial disability 
 limited to 300 weeks. (See Section 21, Subdivision 2.) 
 
 Dismemberments 
 
 The following specific i;i:!civir.itics are paid for loss of: 
 
 50% of wages for Maximum 
 
 Hand 175 weeks $1750.00 
 
 Arm 215 weeks 2150.00 
 
 Foot 150 weeks 1500.00 
 
 Leg 215 weeks 2150.00 
 
 Eye 125 weeks 1250.00 
 
 Compensation for dismemberments shall not exceed $10.00 per week 
 nor be less than $5.00 per week, except where the regular wage is less 
 than $5.00, then the compensation shall be the full wage. (See Section 
 21, Subdivision 3.) 
 
 The loss of both hands or both arms, or both feet, or both legs, or 
 both eyes shall constitute total disability, to be compensated according to 
 Subdivision 1 of Section 21. 
 
 Death (See Sections 22 and 23) 
 
 Where the deceased employe leaves persons entirely dependent upon 
 him for support, the compensation shall be 50% of wages for not exceeding 
 350 weeks, subject to a maximum payment of $10.00 per week, and a min- 
 imum payment of $5.00 per week. Where the regular wage is less than 
 $5.00 a week, compensation shall be the full wage. 
 
 If the deceased employe leaves no persons entirely dependent upon 
 him for support, but leaves one or more partial dependents, the compensa- 
 tion shall be the same proportion of the benefits mentioned in the preceding 
 paragraph as the average amount of the wage regularly contributed by 
 
WORKMEN'S COMPENSATION LAW 145 
 
 the deceased to the partial dependents bears to the total wage of the 
 deceased. Dependents are described in Section 24. 
 
 Burial Expenses (Section 22, Subdivision 3) 
 
 Regardless of whether or not there be dependents entitled to compen- 
 sation, the employer becomes liable for the reasonable expenses of burial, 
 not exceeding $100.00 in amount, in addition to all other benefits payable 
 under the law. 
 
 Medical Aid (See Section 20) 
 
 In all cases of injury received in the course of employment, the em : 
 ployer is obligated to furnish full medical aid and surgical and hospital 
 treatment for the first three weeks after the accident, not exceeding $200.00 
 in amount. 
 
 When Compensation Begins (See Section 19) 
 
 No compensation is payable for the first fourteen calendar days of 
 disability, except for medical aid, unless the disability continues eight weeks 
 or longer, when compensation will be computed from the date of the 
 injury. 
 
 Miscellaneous Provisions 
 
 Third Persons' Rights and Liabilities. (Sections 16-18.) 
 
 Wilful Negligence of Employe relieves employer of liability. (Sec- 
 tion 27.) 
 
 Injury which Increases Previous Disability. (Section 28.) 
 
 Liability of Joint Employers. (Section 29.) 
 
 Contributions by Employe. (Section 30.) 
 
 Employe Not Permitted to Waive Rights. (Section 31.) 
 
 Notice of Injury Required. (Section 33.) 
 
 Examination and Verification of Injury, and Autopsy. (Sections 34 
 and 35.) 
 
 Settlement and Payment of Compensation. The interested parties 
 have the right to settle all matters of compensation between themselves 
 (Section 36), subject to certain restrictions shown in Section 40, 41, 42 
 and 43. 
 
 Procedure in Case of Dispute. (Sections 37 and 39.) 
 
 Reports of Settlements and Accidents. (Section 45.) 
 
 All accidents must be reported to the Labor Commissioner immedi- 
 ately after settlement is made, failing to do so, the employer is subject 
 to a $50.00 fine for each offense. 
 
 Insurance. (Sections 46, 47 and 48.) 
 
 Employers may insure their liability to pay compensation only in 
 companies licensed to write such risks in this state. No policy shall be 
 written by any company unless it covers the entire liability of the em- 
 ployer under the law, without limit in amount. 
 
 Employes have the right to bring an action against an insurance 
 
146 STATE DEPARTMENT OF LABOR 
 
 company, direct, in the event an employer becomes insolvent or in event 
 an execution upon a judgment for compensation is returned unsatisfied. 
 
 Preference as to Compensation. (Section 51.) Claims for compensa- 
 tion have the same preference against the assets of the employer as un- 
 paid wages for labor. 
 
 Words and Phrases Defined. (Section 52.) 
 
WORKMEN'S COMPENSATION LAW 147 
 
 The Nebraska Workmen's Compensation Law 
 
 Senate File No. 1 
 
 A BILL 
 
 For an Act prescribing the liability of an employer to make compensation 
 for injuries received by an employe in the course of employment. 
 Modifying common law and statutory remedies, in such cases. 
 Establishing an elective schedule of compensation. Regulating 
 procedure for the determination of liability and providing meth- 
 ods for payments of compensation thereunder. Repealing all acts 
 and parts of acts in conflict herewith. 
 
 Be it Enacted by the People of the State of Nebraska: 
 
 PART I 
 
 Compensation by Action at Law Modification of Remedies 
 
 SECTION 1. When personal injury is caused to an employe by accident 
 arising out of and in the course of his employment, of which the actual 
 or lawful imputed negligence of the employer is the natural and proxi- 
 mate cause, he shall receive compensation therefor from his employer, 
 provided the employe was himself not wilfully negligent at the time of 
 receiving such injury, and the question of whether the employe was wil- 
 fully negligent shall be one of fact to be submitted to the jury, subject 
 to the usual powers of the court over verdicts rendered contrary to the 
 evidence, or to law. 
 
 SECTION 2. In all cases brought under Part I of this act it shall 
 not be a defense (a) that the employe was negligent, unless and except 
 it shall also appear that such negligence was wilful, or that the employe 
 was in a state of intoxication; (b) that the injury was caused by the 
 negligence of a fellow employe; (c) that the employe had assumed the 
 risks inherent in, or incidental to, or arising from the failure of the em- 
 ployer to provide and maintain safe premises and suitable appliances, 
 which grounds of defense are hereby abolished, except as provided in 
 Section 4. 
 
 SECTION 3. If an employer subject to the provisions of this act as 
 shown in Section 6 elects not to come under Part II hereof, he loses the 
 right to interpose the three defenses above stated in any action brought 
 against him for personal injury or death of an employe. 
 
 SECTION 4. If an employer becomes subject to Part II of this act, 
 and the employe does not, then the defenses existing under the laws of 
 
148 STATE DEPARTMENT OF LABOR 
 
 Nebraska, other than the provisions of this act, at the time of the per- 
 sonal injury or death of the employe shall be available to the employer 
 in any action brought by the employe or his dependents for personal 
 injury or death. 
 
 SECTION 5. The provisions of Sections 1, 2, 3 and 4 shall apply to 
 any claim for the death of any employe arising under Chapter 21 of the 
 Compiled Statutes of Nebraska, 1911, and the acts or parts of acts amend- 
 atory thereof, concerning death by wrongful act. 
 
 SECTION 6. (1) The provisions of this act shall apply to the State 
 of Nebraska and every governmental agency created by it, and every 
 employer in this state employing five or more employes, in the regular 
 trade, business, profession or vocation of such employer. 
 
 (2) The following are declared not to be hazardous occupations and 
 not within the provisions of this act; employers of household domestic 
 servants, employers of farm laborers and all employers employing less 
 than five employes, in the regular trade, business, profession or vocation 
 of such employer. Railroad companies engaged in interstate or foreign 
 commerce are declared subject to the powers of Congress and not within 
 the provisions of this act. 
 
 (3) Any employer not included in -the preceding paragraphs of this 
 section and the employes of such employer may, by their joint election, 
 filed with the Insurance Commissioner, accept the provisions of Part II 
 of this act, and such acceptances shall subject them to the said provisions 
 of Part II hereof to all intents and purposes as if they had been originally 
 included in the terms of Subdivision 2 of this section; Provided, how- 
 ever, that either such employer or workmen (prior to accident) shall 
 have the right to waive such election to come under Part II hereof, the 
 procedure being the same as indicated in Subdivisions (a) and (b) of 
 Section 12. 
 
 SECTION 7. In all actions at law brought pursuant to Part I of this 
 act, the burden of proof to establish wilful negligence of the injured 
 employe shall be on the defendant. 
 
 SECTION 8. No claim or agreement for legal services or disburse- 
 ments in support of any demand made or suit brought under the pro- 
 visions of this act shall be an enforceable lien against the amounts to 
 be paid as damages or compensation or be valid or binding in any other 
 respect, unless the same be approved in writing by the judge presiding 
 at the trial, or in case of settlement without trial, by the judge of the 
 District Court of the district in which such issue arose. After such 
 approval, if notice in writing be given the defendant of such claim or 
 agreement for legal services and disbursements, the same shall be a lien 
 against any amount thereafter to be paid as damages or compensation. 
 Provided, however, that where the employe's compensation is payable by 
 the employer in periodical installments, the court shall fix, at the time of 
 approval, the proportion of each installment to be paid on account of 
 legal services and disbursements. 
 
WORKMEN'S COMPENSATION LAW 149 
 
 PART II 
 Elective Compensation 
 
 SECTION 9. If both employer and employe become subject to Part II 
 of this act, both shall be bound by the schedule of compensation herein 
 provided, which compensation shall be paid in every case of injury or 
 death caused by accident arising out of and in the course of employment, 
 except accidents caused by,, or resulting in any degree from wilful negli- 
 gence, as hereinafter defined, of the employe. 
 
 SECTION 10. When employer and employe shall by agreement, ex- 
 press or implied, or otherwise as hereinafter provided, accept the pro- 
 visions of Part II of this act, compensation shall be made for personal 
 injuries to or for the death of such employe by accident arising out of 
 and in the course of his employment, without regard to the negligence 
 of the employer, according to the schedule hereinafter provided, in all 
 cases except when the injury or death is caused by wilful negligence on 
 the part of the employe; and the burden of proof of such fact shall be 
 upon the employer. 
 
 SECTION 11. Such agreement or the election hereinafter provided for 
 shall be a surrender by the parties thereto of their rights to any other 
 method, form or amount of compensation or determination thereof than 
 as provided in Part II of this act, and an acceptance of all the provisions 
 of Part II of this act, and shall bind the employe himself, and for com- 
 pensation for his death shall bind his legal representatives, his widow and 
 next of kin, as well as the employer and the legal representatives of a 
 deceased employer, and those conducting the business of the employer, and 
 those conducting the business of the employer during bankruptcy or in- 
 solvency. 
 
 SECTION 12. Method of Election. In the occupations described in 
 Section 6 hereof, and all contracts of employment made after the taking 
 effect of this act shall be presumed to have been made with reference, 
 and subject to the provisions of Part II hereof unless otherwise expressly 
 stated in the contract, 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 II. Every such employer and every em- 
 ploye is presumed to accept and come under Part II hereof, unless prior 
 to accident he shall signify his election not to accept or be bound by the 
 provisions of Part II. This election not to accept Part II shall be by 
 notice as follows: 
 
 (a) The employer shall post and thereafter keep continuously posted 
 in a conspicuous place about the place or places where his workmen are 
 employed a written or printed notice of his election not to be bound by 
 Part II hereof, and shall file a duplicate thereof with the Insurance Com- 
 missioner. 
 
 (b) The employe shall give written or printed notice to the em- 
 ployer of his election not to be bound by Part II and shall file a duplicate 
 
150 STATE DEPARTMENT OF LABOR 
 
 with proof of service attached thereto with the Insurance Commissioner. 
 SECTION 13. Waiving Election. An employer who has given notice 
 of his election not to accept or be bound by the provisions of Part II 
 hereof, may waive such election at any time, by posting about the place 
 or places where his workmen are employed a written or printed notice 
 setting forth a withdrawal of his previous election not to be bound by 
 the provisions of Part II. A duplicate of such notice with proof of such 
 posting attached thereto shall be filed with the Insurance Commissioner. 
 An employe who has given written or printed notice to his employer that 
 he elects not to be subject to the provisions of Part II hereof, may waive 
 such election at any time prior to the happening of an accident resulting 
 in personal injuries to said employe, by a notice in writing directed to 
 the employer and served upon the employer or his agent. A duplicate 
 of such notice with proof of service attached thereto shall be filed with 
 the Insurance Commissioner. The waivers referred to in the preceding 
 paragraphs of this section shall not become effective until noon of the 
 fifth day after filing the required notice with the Insurance Commis- 
 sioner. 
 
 SECTION 14. Employer Described. The following shall constitute 
 employers subject to the provisions of this act: 
 
 (1) The State and every governmental agency created by it. 
 
 (2) Every person, firm or corporation, including any public service 
 corporation, who is engaged in any trade, occupation, business or pro- 
 fession as described in Section 6, and who has any person in service under 
 any contract of hire, express or implied, oral or written, and who prior 
 to the time of the accident to the employe for which compensation under 
 this act may be claimed, shall not, in the manner provided in Section 12, 
 have elected not to become subject to the provisions of Part II of this act. 
 
 SECTION 15. Employe Described. The terms "employe" and "work- 
 man" are used interchangeably and have the same meaning throughout 
 this act; the said terms include the plural and all ages and both sexes, 
 and shall be construed to mean: 
 
 (1) Every person in the service of the State or of any govern- 
 mental agency created by it, "under any appointment or contract of hire, 
 express or implied, oral or written, but shall not include any official of the 
 State, or of any governmental agency created by it, who shall have been 
 elected or appointed for a regular term of office, or to complete the un- 
 expired portion of any regular term. 
 
 (2) Every person in the service of any employer who is engaged 
 in any trade, occupation, business or profession as described in Section 
 6, 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, who for the purpose of making election of remedies 
 under this Code shall have the same power of contracting and electing 
 as adult employes. 
 
 (3) It shall not be construed to include any person whose employ- 
 ment is casual, or not for the purpose of gain or profit by the employer, 
 
WORKMEN'S COMPENSATION LAW 151 
 
 or which is not in the usual course of the trade, business, profession or 
 occupation of his employer. The term "casual" shall be construed to 
 mean "Occasional; coming at certain times without regularity, in dis- 
 tinction from stated or regular." 
 
 (4) It shall not be construed to include any person to whom articles' 
 and materials are given to be made up, cleaned, washed, finished, repaired 
 or adapted for sale in the worker's own home or on other premises not 
 under the control or management of the employer, unless the employe 
 is required to perform the work at a place designated by the employer. 
 
 Third Persons' Rights and Liabilities 
 
 SECTION 16. Any person, firm or corporation creating or carrying 
 into operation any scheme, artifice or device to enable him, them or it 
 to execute work without being responsible to the workmen for the pro- 
 visions of this act shall be included in the term "employer" and with the 
 immediate employer shall be jointly and severally liable to pay the com- 
 pensation herein provided for and be subject to all the provisions of this 
 act. This section, however, shall not be so construed as to cover or mean 
 an owner who lets a contract to a contractor in good faith, or a contractor 
 who, in good faith, lets to a sub-contractor a portion of his contract, if 
 the owner or principal contractor, as the case may be, requires the con- 
 tractor or sub-contractor, respectively, to procure a policy or policies of 
 insurance from an insurance company licensed to make such insurance 
 in this state, which policy or policies of insurance shall guarantee payment 
 of compensation according to this act to injured workmen. 
 
 SECTION 17. Where compensation is claimed from, or proceedings 
 taken against a person, firm or corporation under the foregoing section, 
 the compensation shall be calculated with reference to the wage the work- 
 man was receiving from the person by whom he was immediately employed 
 at the time of the injury. 
 
 SECTION 18. Subrogation. Where a third person is liable to the 
 employe or to the dependents, for the injury or death, the employer shall 
 be subrogated to the right of the employe or to the dependents against 
 such third person, and the recovery by such employer shall not be limited 
 to the amount payable as compensation to such employe or dependents, 
 but such employer may recover any amount which such employe or his 
 dependents would have been entitled to recover. Any recovery by the 
 employer against such third person, in excess of the compensation paid 
 by the employer after deducting the expenses of making such recovery, 
 shall be paid forthwith to the employe or to the dependents, and shall 
 be treated as an advance payment by the employer, on account of any 
 future installments of compensation. 
 
 Schedule of Compensation 
 
 SECTION 19. When Compensation Begins. No compensation shall be 
 allowed for the first fourteen days after disability begins, except as pro- 
 vided in Section 20, but if disability extends beyond the period of fourteen 
 
152 STATE DEPARTMENT OF LABOR 
 
 days, compensation shall begin on the fifteenth day after the injury; Pro- 
 vided, however, that if such disability continues for eight weeks or longer, 
 such compensation shall be computed from the date of the injury. 
 
 SECTION 20. Medical Aid. During the first twenty-one days after 
 disability begins the employer shall be liable for reasonable medical and 
 hospital services and medicines as and when needed, not however to ex- 
 ceed two hundred dollars in value,* unless the employe refuses to allow 
 them to be furnished by the employer; Provided, however, that where the 
 injured employe refuses or neglects to avail himself of such medical or 
 surgical treatment, the employer shall not be liable for any aggravation 
 of such injury due to said neglect or refusal. 
 
 SECTION 21. The following schedule of compensation is hereby estab- 
 lished for injuries resulting in disability: 
 
 (1) For the first three hundred weeks of total disability the com- 
 pensation shall be fifty per centum of the wages received at the time of 
 injury, but such compensation shall not be more than ten dollars per 
 week or less than five dollars per week; Provided, that, if at the time 
 of injury the employe receives wages of less than five dollars per week, 
 then he shall receive the full amount of such wages per week as com- 
 pensation. After the first three hundred weeks of total disability, for 
 the remainder of the life of the employe, he shall receive forty per centum 
 of the wages received at the time of the injury, but the compensation 
 shall not be more than eight dollars per week nor less than four dollars 
 per week; Provided, that, if at the time of the injury the employe receives 
 wages of less than four dollars per week then he shall receive the full 
 amount of such wages as compensation. Nothing in this subdivision 
 shall require the payment of compensation after disability shall cease. 
 Should partial disability be followed by total disability, the period of three 
 hundred weeks mentioned in this subdivision of this section shall be re- 
 duced by the number of weeks during which compensation was paid for 
 such partial disability. 
 
 (2) For disability partial in character (except the particular cases 
 mentioned in Subdivision 3 of this section), the compensation shall be 
 fifty per centum of the difference between the wages received at the time 
 of injury and the earning power of the employe thereafter, but such 
 compensation shall not be more than ten dollars per week. This com- 
 pensation shall be paid during the period of such partial disability; not, 
 however, beyond three hundred weeks after the date of the accident caus- 
 ing the disability. Should total disability be followed by partial disability, 
 the period of three hundred weeks mentioned in this subdivision shall be 
 reduced by the number of weeks during which compensation was paid 
 for such total disability. 
 
 (3) For all disability resulting from permanent injury of the fol- 
 lowing classes, the compensation shall be exclusively as follows: 
 
 For the loss of a hand, fifty per centum of the wages during one 
 hundred and seventy-five weeks; 
 
WORKMEN'S COMPENSATION LAW 153 
 
 For the loss of an arm, fifty per centum of wages during two hun- 
 dred and fifteen weeks; 
 
 For the loss of a foot, fifty per centum of wages during one hundred 
 and fifty weeks; 
 
 For the loss of a leg, fifty per centum of wages during two hundred 
 and fifteen weeks; 
 
 For the loss of an eye, fifty per centum of wages during one hundred 
 and twenty-five weeks; 
 
 For the loss of any two or more of such members, not constituting 
 total disability, fifty per centum of wages during the aggregate of the 
 periods specified for each. 
 
 The loss of both hands or both arms, or both feet, or both legs, or 
 both eyes shall constitute total disability, to be compensated according 
 to the provisions of Subdivision 1 of this section. 
 
 Amputation between the elbow and the wrist shall be considered as 
 the equivalent of the loss of a hand, and amputation between the knee 
 and the ankle shall be considered as the equivalent of the loss of a foot. 
 Amputation at or above the elbow shall be considered as the loss of an 
 arm, and amputation at or above the knee shall be considered as the loss 
 of a leg. Permanent loss of the use of a hand, arm, foot, leg or eye shall 
 be considered as the equivalent of the loss of such hand, arm, foot, leg 
 or eye. Compensation under this subdivision shall not be more than ten 
 dollars per week nor less than five dollars per week; Provided, that, if 
 at the time of injury the employe receives wages of less than five dollars 
 per week, then he shall receive the full amount of such wages per week 
 as compensation. 
 
 SECTION 22. Injuries Resulting in Death. (1) If death results from 
 the injuries and the deceased employe leaves one or more dependents 
 wholly dependent upon his earnings for support at the time of the acci- 
 dent causing the injury, the compensation, subject to the provisions of 
 Section 23, shall be fifty per centum of the wages received at the time 
 of injury, but the compensation shall not be more than ten dollars per 
 week nor less than five dollars per week; Provided, that, if at the time 
 of injury the employe receives wages of less than five dollars per week, 
 then the compensation shall be the full amount of such wages per week. 
 This compensation shall be paid during dependency, not exceeding three 
 hundred and fifty weeks from the date of the accident causing the injury. 
 
 (2) If the deceased employe leaves no dependents wholly dependent 
 upon his earnings for support at the time of the accident causing the in- 
 jury, but leaves one or more dependents only partly dependent upon 
 his earnings for support at said time, the compensation shall be the same 
 proportion of the benefits provided in Subdivision 1 of this section for 
 persons wholly dependent as the average amount of the wage regularly 
 contributed by the deceased to such partial dependents at, and for a 
 reasonable time immediately prior to the injury bears to the total wage 
 of the deceased, during the same time. 
 
 (3) Upon the death of an employe, resulting through personal in- 
 juries as herein defined, whether or not there be dependents entitled to 
 
154 STATE DEPARTMENT OF LABOR 
 
 compensation, the reasonable expenses of the last sickness and burial, 
 not exceeding one hundred dollars, without deduction of any amount there- 
 tofore paid for compensation or for medical expenses, shall be paid to 
 his dependents, or if there be no dependent, then to the personal repre- 
 sentatives of the deceased. 
 
 (4) Compensation under this act to alien dependents, widows, chil- 
 dren and parents not residents of, the United States, shall be the same 
 in amount as is provided in each case for residents, except that at any 
 time within one year after the death of the injured employe, the employer 
 may, at his option, commute all future installments of compensation to 
 be paid to such alien dependents by paying to them two-thirds of the 
 total amount of such future installments of compensation. Alien wid- 
 owers, brothers and sisters not residents of the United States shall not 
 be entitled to any compensation. 
 
 (5) The consul-general, consul, vice-consul-general, or vice-consul, 
 of the nation which the employe, whose injury results in death, is a 
 citizen, or the representative of such consul-general, consul, vice-consul- 
 general, or vice-consul, residing within the State of Nebraska, shall be 
 regarded as the sole legal representative of any alien dependents of the 
 employe, residing outside of the United States, and representing the na- 
 tionality of the employe. Such consular officer or his representative, re- 
 siding in the State of Nebraska, shall have in behalf of such non-resident 
 dependents, the exclusive right to adjust and settle all claims for com- 
 pensation provided by this act and to receive for distribution to such 
 non-residents alien dependents all compensation arising hereunder. 
 
 SECTION 23. Death of Employe Receiving Disability Compensation. 
 The death of an injured employe prior to the expiration of the period 
 within which he would receive such disability payment, shall be deemed 
 to end such disability, and all liability for the remainder of such payment 
 which he would have received in case he had lived shall be terminated, 
 but the employer shall thereupon be liable for the following death benefit 
 in lieu of any further disability indemnity. If the injury so received 
 by such employe was the cause of his death, and such deceased employe 
 leaves dependents as hereinbefore specified, wholly or partially dependent 
 on him for support, the death benefit shall be a sum sufficient, when 
 added to the indemnity which shall at the time of death have been paid 
 or become payable under the provisions of this act to such deceased em- 
 ploye, to make the total compensation for the injury and death equal to 
 the full amount which such dependents would have been entitled to receive 
 under the provisions of Section 22 hereof in case the accident had re- 
 sulted in immediate death, and such benefit shall be payable in the same 
 manner and subject to the same terms and conditions in all respects as 
 payments made under the provisions of said Section 22. No deduction 
 shall be made for the amount which may have been paid for medical and 
 hospital services and medicines or for the expenses of the last sickness 
 or burial. If the employe die from some cause other than the injury, 
 there shall be no liability for compensation to accrue after his death. 
 
WORKMEN'S COMPENSATION LAW 155 
 
 SECTION 24. Dependents. The following persons shall be conclusive- 
 ly presumed to be wholly dependent for support upon a deceased employe: 
 
 (a) A wife upon a husband with whom she is living at the time of 
 his death; 
 
 (b) A husband upon a wife with whom he is living at the time of 
 her death; 
 
 (c) A child or children under the age of sixteen years (or over said 
 age, if physically or mentally incapacitated from earning) upon the par- 
 ent with whom he is or they are living at the time of death of such par- 
 ent, there being no surviving parent. In case there is more than one 
 child thus dependent, the death benefit shall be divided equally among 
 them; 
 
 (d) Compensation shall be payable under Sections 22 and 23 to or 
 on account of any child, brother or sister, only if and while such child, 
 brother or sister, is under the age of sixteen. No compensation shall be 
 payable under said sections to a widow, unless she was living with her 
 deceased husband at the time of his death; provided, that a wife or a 
 husband living in a state of abandonment for more than two years at 
 the time of the injury, or subsequently, shall not be a beneficiary under 
 this act. The terms "child" and "children" shall include step-children 
 and adopted children if members of the decedent's household at the time 
 of his death, and shall include post-humous children. If the compensation 
 payable under said sections to any person shall for any cause cease, 
 the compensation to the remaining persons entitled thereunder shall there- 
 after be the same as would have been payable to them had they been 
 the only persons entitled to compensation at the time of the death of 
 the deceased. If a widow or widower of a deceased employe shall re- 
 marry, then the compensation benefits shall become payable to the child 
 or children of such widow or widower, if there be any such child or chil- 
 dren; but if there be no such child or children of such dependent widow 
 or widower, shall not be affected by such remarriage; 
 
 (e) In all other cases, questions of dependency, in whole or in part, 
 shall be determined in accordance with the fact, as the fact may be at 
 the time of the injury; and in such other cases, if there is more than one 
 person wholly dependent, the death benefit shall be divided equally among 
 them, and persons partly dependent, if any, shall receive no part thereof; 
 if there is no one wholly dependent and more than one person partly 
 dependent, the death benefit shall be divided among them according to the 
 relative extent of their dependency; 
 
 (f) No person shall be considered a dependent, unless he or she be 
 a member of the family of the deceased employe, or bears to him the rela- 
 tion of widow or widower, or lineal descendent, or ancestor, or brother, 
 or sister; 
 
 (g) Questions as to who constitute dependents and the extent of 
 their dependency shall be determined as of the date of the accident to 
 the employe, and the death benefit shall be directly recoverable by and 
 payable to the dependent or dependents entitled thereto, or their legal 
 guardians or trustees. No dependent of an injured employe shall be 
 
156 STATE DEPARTMENT OF LABOR 
 
 deemed, during the life of such employe, a party in interest to any pro- 
 ceeding by him for the enforcement of collection of any claim for com- 
 pensation, nor as respects the compromise thereof by such employe. 
 
 SECTION 25. Except as hereinafter provided, all amounts of compen- 
 sation payable under the provisions of this act shall be payable periodically 
 in accordance with the method of payment of the wages of the employe 
 at the time of his injury or death. - 
 
 SECTION 26. Wherever in this act the term "wages" is used, it shall 
 be construed to mean the money rate at which the service rendered is 
 recompensed under the contract of hiring in force at the time of the 
 accident, and shall not include gratuities received from the employer or 
 others, nor shall it include board, lodging or similar advantages, received 
 from the employer, unless the money value of such advantages shall have 
 been fixed by the parties at the time of hiring. In occupations involving 
 seasonable employment or employments dependent upon the weather, the 
 employe's weekly wages shall be taken to be one-fiftieth of the total wages 
 which he has earned from all occupations during the year immediately 
 preceding the accident, unless it be shown that during such year, by rea- 
 son of exceptional causes, such method of computation does not ascertain 
 fairly the earnings of the employe, in which case the period for calcu- 
 lation shall be extended so far as to give a basis for the fair ascertain- 
 ment of his average weekly earnings. In continuous employments, if 
 immediately prior to the accident the rate of wages was fixed by the 
 day or hour, or by the output of the employe, his weekly wages shall be 
 taken to be five and one-half times his average earnings at such rate for a 
 working day of ordinary length, excluding earnings from overtime and 
 using as the basis of calculation his earnings during so much of the pre- 
 ceding six months as he worked for the same employer. 
 
 SECTION 27. Wilful Negligence. If the employe is injured by reason 
 of his intentional wilful negligence, or by reason of being in a state of 
 intoxication, neither he nor his beneficiaries shall receive any compensation 
 under the provisions of this act. 
 
 SECTION 28. Injury Increasing Disability. If an employe receives 
 an injury, which, of itself, would only cause partial disability, but which, 
 combined with a previous disability, does in fact cause total disability, 
 the employer shall only be liable as for the partial disability, so far as 
 the subsequent injury is concerned. 
 
 SECTION 29. Liability of Joint Employers. In case any employe for 
 whose injury or death compensation is payable under this act shall, at 
 the time of the injury, be employed and paid jointly by two or more em- 
 ployers subject to this act, such employers shall contribute to the payment 
 of such compensation in proportion to their several wage liabilities to 
 such employe. If one or more, but not all of such employers should be 
 subject to the provisions of Part II of this act, then the liability of such 
 of them as are so subject shall be to pay that proportion of the entire 
 
WORKMEN'S COMPENSATION LAW 157 
 
 compensation which tneir proportionate wage liability bears to the entire 
 wages of the employe; Provided, however, that nothing in this section 
 shall prevent any arrangement between employers for a different distri- 
 bution between themselvs of the ultimate burden of compensation. 
 
 SECTION 30. Contributions by Employe. No savings or insurance of 
 the injured employe, or any contribution made by him to any benefit fund 
 or protective association independent of this act shall be taken into con- 
 sideration in determining the compensation to be paid hereunder, nor shall 
 benefits derived from any other source than those paid or caused to be 
 paid by the employer as herein provided, be considered in fixing the 
 compensation under this act. 
 
 SECTION 31. No Waiver of Rights. No agreement by an employe 
 to waive his rights to compensation under this act shall be valid. 
 
 SECTION 32. Minors and Mentally Incompetent. If an injured em- 
 ploye is mentally incompetent or is a minor at the time when any right 
 or privilege accrues to him under this act, his guardian or next friend 
 may, in his behalf, claim and exercise such right or privilege. 
 
 SECTION 33. Notice of Injury. No proceedings for compensation for 
 an injury under this act shall be maintained, unless a notice of the injury 
 shall have been given to the employer as soon as practicable after the 
 happening thereto, and unless the claim for compensation with respect 
 to such injury shall have been made within six months after the occur- 
 rence of the same, or, in cast of the death of the employe, or in the event 
 of his physical or mental incapacity within six months after death or the 
 removal of such physical or mental incapacity. 
 
 The said notice shall be in writing, and shall state in ordinary lan- 
 guage the time, place and cause of the injury; and shall be signed by 
 the person injured, or by a person in his behalf, or, in the event of his 
 death, by his legal representative or by a person in his behalf. 
 
 The notice shall be served upon the employer or an agent thereof. 
 Such service may be made by delivering said notice to the person on 
 whom it is to be served, or leaving it at his residence or place of busi- 
 ness, or by sending it by registered mail addressed to the person or cor- 
 poration on whom it is to be served at his last known residence or place 
 of business. 
 
 A notice given under the provisions of this section shall not be held 
 invalid . or insufficient by reason of any inaccuracy in stating the time, 
 place or cause of the injury, unless it is shown that it was the intention 
 to mislead, and the employer, or the insurance company carrying such 
 risk, as the case may be, was in fact misled thereby. Want of such writ- 
 ten notice shall not be a bar to proceedings under this act, if it be shown 
 that the employer had notice or knowledge of the injury. 
 
 Examination and Verification of Injury 
 
 SECTION 34. Examination of Injured. After an employe has given 
 notice of an injury as provided in Section 33, and from time to time there- 
 after during the continuance of his disability, he shall, if so requested 
 
158 STATE DEPARTMENT OF LABOR 
 
 by the employer or the insurance company carrying such risk, submit 
 himself to an examination by a physician or surgeon legally authorized 
 to practice medicine under the laws of the State, furnished and paid for 
 by the employer, or the insurance company carrying such risk, as the 
 case may be. The employe shall have the right to have a physician 
 provided and paid for by himself present at the examination. The re- 
 fusal of the employe to submit to such examination shall deprive him of 
 the right to compensation under this act during the continuance of such 
 refusal and the period of such refusal shall be deducted from the period 
 during which compensation would otherwise be payable. 
 
 SECTION 35. Autopsy. In all death claims, where the cause of 
 death is obscure or disputed, any interested party may require an autopsy, 
 the cost of such autopsy to be borne by the party demanding the same. 
 
 Settlement and Payment of Compensation 
 
 SECTION 36. The interested parties shall have the right to settle all 
 matters of compensation between themselves in accordance with the pro- 
 visions of this act. 
 
 SECTION 37. In case of a dispute over, or failure to agree upon a 
 claim for compensation between employer and employe, or the dependents 
 of the employe, the claim may be submitted to arbitration in such manner 
 or method as may be mutually agreed upon, or either party may submit 
 the claim, both as to the question of fact, the nature and effect of the 
 injuries, and the amount of compensation therefor, according to the sched- 
 ule herein provided, to the District Court of the county which would have 
 jurisdiction of a civil action between the parties, which court shall have 
 authority to hear and determine the cause as a suit in equity and enter 
 final judgment therein determining all questions of law and fact in ac- 
 cordance with the provisions of this act, which judgment shall be final 
 and conclusive unless reversed or modified on appeal or otherwise modified 
 pursuant to the provisions of this act. 
 
 SECTION 38. In case of personal injury, all claim for compensation 
 shall be forever barred unless, within one year after the accident, the 
 parties shall have agreed upon the compensation payable under this act, 
 or unless, within one year after the accident, one of the parties shall 
 have filed a petition as provided in Section 39 hereof. In case of death, 
 all claims for compensation shall be forever barred unless, within one 
 year after the death, the parties shall have agreed upon the compensa- 
 tion under this act, or unless within one year after the death, one of 
 the parties shall have filed a petition as provided in Section 39 hereof. 
 Where, however, payments of compensation have been made in any case, 
 said limitation shall not take effect until the expiration of one year from 
 the time of the making of the last payment. 
 
 SECTION 39. Procedure in cases of dispute shall be as follows: Either 
 party may file in the District Court a verified petition setting forth the 
 names and residences of the parties and the facts relating to the em- 
 ployment at the time of the injury, the injury in its extent and character, 
 the amount of wages being received at the time of injury, the knowledge 
 
WORKMEN'S COMPENSATION LAW 159 
 
 of or notice to the employer of the occurrence of said injury and such 
 other facts as may be necessary for the information of the court, and 
 also stating the matter or matters in dispute and the contention of the 
 petitioner with reference thereto. 
 
 Upon the filing of such petition a summons shall issue and be served 
 upon the adverse party, as in civil causes, together with a copy of the 
 petition. Return of service shall be made within four days from the 
 issuance of the summons. Within seven days after the return day of 
 such summons the party upon whom the same is served shall file an 
 answer to said petition, which shall admit or deny the substantial aver- 
 ments of the petition, and shall state the contention of the defendant with 
 reference to the matters in dispute, as disclosed by the petition. The ans- 
 wer shall be verified in like manner as required for a petition. At the 
 expiration of the time fixed for filing answers the court shall proceed to 
 hear and determine the cause without delay and shall render judgment 
 thereon according to the form of law. Any appeal from such judgment 
 shall be prosecuted in accordance with the general laws of the state regu- 
 lating appeals and actions at law except that such appeal shall be 
 perfected within thirty days from the entry of the judgment and the 
 cause shall be advanced for hearing in the Supreme Court so as to bring 
 said cause on for argument before such court within sixty days from the 
 filing of the appeal and said Supreme Court shall render its judgment 
 and opinion in such cases within thirty days after submission. 
 
 SECTION 40. Payments in Lump Sum. The amounts of compensa- 
 tion payable periodically under the law, either by agreement of the parties, 
 or by decision of the court, may be commuted to one or more lump sum 
 payments, except compensation due for death and permanent disability. 
 These may be commuted only with the consent of the District Court. 
 
 SECTION 41. Settlements to be Final Exceptions. All settlements 
 by agreement of the parties and all awards of compensation made by 
 the court, except those amounts payable periodically for six months or 
 more, shall be final and not subject to readjustment. 
 
 SECTION 42. When Compensation Payable Periodically May be Modi- 
 fied. All amounts paid by an employer or by an insurance company 
 carrying such risk, as the case may be, and received by the employe or 
 his dependents, by lump sum payments, shall be final, but the amount of 
 any agreement or award payable periodically for more than six months 
 may be modified as follows: 
 
 (a) At any time by agreement of the parties. 
 
 (b) If the parties cannot agree, then at any time after six months 
 from the date of the agreement or award, an application may be made 
 to the court by either party on the ground of increase or decrease or 
 incapacity due solely to the injury, or that the condition of a dependent 
 has changed as to age or marriage, or by reason of the death of a de- 
 pendent. In such case the same procedure shall be followed as in Section 
 39 in case of disputed claim for compensation. 
 
160 STATE DEPARTMENT OF LABOR 
 
 SECTION 43. Employer May Pay Award to Trustee and be Dis- 
 charged. At any time after the amount of any award has been agreed 
 upon by the parties, or found and ordered by the court, a sum equal to 
 the present value of all future installments of compensation 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, or by the insurance 
 company carrying such risk, as the case may be, to any savings bank or 
 trust company of this state, in good standing, and such sum together 
 with all interest thereon, shall thereafter be held in trust for the employe 
 or the dependents of the employe, who shall have no further recourse 
 against the employer. The payment of such sum by the employer, evi- 
 denced by the receipt of the trustee to be filed with the Insurance Com- 
 missioner, shall operate as a satisfaction of said awards 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 employe or the dependents of the deceased employe, as the 
 case may be. 
 
 SECTION 44. In case of death, where no executor or administrator is 
 qualified, the said court shall, by order, direct payment to be made to 
 such persons as would be appointed administrator of the estate of such 
 decedent upon like terms as to bond for the proper application of com- 
 pensation payments as are required of administrators. 
 
 SECTION 45. Reports of Settlements and Accidents. Report of all 
 settlements and releases shall be filed by the employer with the Labor 
 Commissioner within sixty days after such settlements are made. The 
 said reports shall contain the name and nature of the business of the 
 employer, the location of his establishment or place of work, the name, 
 age, sex, and occupation of the injured employe, and shall state the time, 
 the nature and cause of the injury, and such other information as may 
 be required by the Labor Commissioner. Any employer who refuses or 
 neglects to make the report required by this section shall be punished by 
 a fine of not more than fifty dollars for each offense. If the injury shall 
 result in the death of the employe, such report shall show whether the 
 deceased was a citizen of the United States, or an alien; in the event 
 that the deceased was an alien, such report shall show his nationality, 
 and so far as may be known, his place of birth, parentage and names and 
 addresses of dependents. If, as a result of the injury, the death of the 
 employe occurs subsequent to the making of such report, it shall be the 
 duty of the employer to make supplemental reports giving the same in- 
 formation as if the injury had caused the immediate death of the em- 
 ploye. 
 
 When an injury results in the death of an employe who is a citizen 
 or subject of a foreign country, the Labor Commissioner shall, after 
 such death has been reported to him, at once notify the superior consular 
 officer of the country of which the employe at the time of his death, was 
 
WORKMEN'S COMPENSATION LAW 161 
 
 a citizen or subject, and whose consular district embraces the State of 
 Nebraska, or the representative, residing in the State of Nebraska, of such 
 consular officer, whom he shall have formally designated as his represen- 
 tative by a communication in writing to the Labor Commissioner. Such 
 notification shall contain in addition to the name of the employe, such 
 further information as the Labor Commissioner may possess respecting 
 the place of birth, parentage, and names and addresses of the' dependents 
 of the employe. 
 
 SECTION 46. Insurance. An employer who is liable for compensa- 
 tion as provided in this act may insure the liability to pay such compen- 
 sation in any liability insurance company or companies licensed to write 
 such risks in the State of Nebraska, or in any mutual insurance associa- 
 tion authorized under the laws of the State of Nebraska to assume such 
 risks. 
 
 SECTION 47. Insurance Policies. No policy of insurance against li- 
 ability under this act shall be made unless the same shall cover the entire 
 liability of the employer thereunder and shall contain an agreement by 
 the insurer that, in case the employer shall be or become insolvent, or in 
 case an execution upon a judgment for compensation is returned unsatis- 
 fied, an employe of such employer or dependents of a deceased employe 
 who shall be entitled to compensation under this act may enforce their 
 claim or claims to compensation against the insurer to the same extent 
 that the employer could have enforced his claim against such insurer had 
 he paid compensation. No suit shall be maintained for the collection of 
 premiums upon any such policy of insurance, unless such covenant is 
 contained in said policy. Such covenant shall be unaffected by any de- 
 fault of the insured in the payment of premiums and shall be construed 
 to be a direct promise to such injured employe and dependents, and shall 
 be enforceable by action brought in the name of such injured employe 
 or in the names of such dependents. Every contract for the insurance 
 of the compensation herein provided for, or against liability therefor, 
 shall be deemed to be made subject to the provisions of this act, and pro- 
 visions thereof inconsistent with this act shall be void. No company 
 or association shall enter into any such contract for insurance unless 
 such insurer shall have been approved by the State Insurance Commis- 
 sioner as provided by law. 
 
 SECTION 48. Existing Liability Insurance Contracts. Nothing herein 
 shall affect any existing contract for employers' liability insurance, or 
 affect the organization of any mutual or other insurance company, or any 
 arrangement now existing between employers and employes, providing 
 for the payment to such employes, their families, dependents or repre- 
 sentatives, sick, accident or death benefits in addition to the compensa- 
 tion provided for by this act; but liability for compensation under this 
 act shall not be reduced or affected by any insurance of the injured em- 
 ploye, or any contribution or other benefit whatsoever, due to or received 
 by the person entitled to such compensation, and the person so entitled 
 
162 STATE DEPARTMENT OF LABOR 
 
 shall, irrespective of any insurance or other contract, have the rig-ii* 
 recover the same directly from the employer, and in addition thereto, 
 the right to enforce in his own name in the manner provided in Section 
 47 the liability of any insurer who may, in whole or in part, have insured 
 the liability for such compensation; Provided, however, that payment in 
 whole or in part of such compensation by either the employer, or the in- 
 surer, as the case may be, shall, to the extent thereof, be a bar to recovery 
 against the other, of the amount so paid. 
 
 PART III 
 Miscellaneous Provisions 
 
 SECTION 49. Employer How Released from Claims. If any employe, 
 or his dependents in case of death, of any employer subject to the pro- 
 visions of Part II of this act files any claim with, or accepts any payment 
 from such employer, or from any insurance company carrying such risk, 
 on account of personal injury, or makes any agreement, or submits any 
 question to the court under Part II of this act, such action shall constitute 
 a release to such employer of all claims or demands at law, if any, arising 
 from such injury. 
 
 SECTION 50. Payments Not Assignable. No payment under this act 
 shall be assignable or subject to attachment or garnishment, or be held 
 liable in any way for any debts, except as provided in Section 8 hereof. 
 
 SECTION 51. Preference as to Compensation. The right to compen- 
 sation and all compensation awarded to any injured employe or for death 
 claims to his dependents (without limit or amount), shajl have the same 
 preference against the assets of the employer as unpaid wages for labor, 
 but such compensation shall not become a lien on the property of third 
 persons by reason of such preference. 
 
 Words and Phrases Defined 
 
 SECTION 52. 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 meaning 
 in the construction used: 
 
 (a) The term "Physician" shall include "Surgeon," and in either 
 case shall mean one legally authorized to practice his profession within 
 the State of Nebraska, and in good standing in his profession at the 
 time. 
 
 (b) The word "Accident," as used in this act shall, unless a 'different 
 meaning is clearly indicated by the context, be construed to mean an un- 
 expected or unforseen event happening suddenly and violently, with or 
 without human fault and producing at the time objective symptoms of an 
 injury. 
 
 The terms "Injury" and "Personal injuries" shall mean only violence 
 to the physical structure of the body and sucn disease or infection as 
 
WORKMEN'S COMPENSATION LAW 163 
 
 .ctiiy results therefrom. The said terms shall in no case be con- 
 strued to include occupational diseases in any form, or any contagious 
 or infectious disease contracted during the course of employment, or 
 death due to natural causes but occurring while the workman is at work. 
 
 "Death" when mentioned as a basis for the right to compensation 
 means only death resulting from such violence and its resultant effects 
 occurring within three hundred and fifty weeks after the accident. 
 
 (c) Personal Injuries, Etc. Without otherwise affecting either the 
 meaning or interpretation of the abridged clause, "Personal injuries arising 
 out of and in the course of employment," it is hereby declared: 
 
 Not to cover workmen except while engaged in, on or about the 
 premises where their duties are being performed, or where their services 
 requires their presence as a part of such services at the time of the in- 
 jury, and during the hours of service as such workmen. 
 
 (d) Wilful Negligence. For the purposes of this act, wilful negli- 
 gence shall consist of (1) deliberate act, or (2) such conduct as evidences 
 reckless indifference to safety, or (3) intoxication at the time of the 
 injury. 
 
 (e) Whenever in this act the singular is used, the plural shall be 
 included; where the masculine gender is used, the feminine shall be in- 
 cluded. 
 
 (f) The designation "State Insurance Commissioner" or "Insurance 
 Commissioner" as used herein is intended to mean the State official who 
 has charge of the Insurance Department of the State of Nebraska. 
 
 (g) The "court" as used herein shall mean the District 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. 
 
 SECTION 53. Rights of Action Preserved. Every right of action for 
 death by wrongful act, or for injury by negligence, accruing to an injured 
 employe prior to the taking effect of this act is continued and preserved 
 under the existing law. 
 
 SECTION 54. Extension of Time Limit for Commencement of Actions 
 at Common Laiv if Act Repealed or Held Invalid. If the provisions of this 
 act relating to the compensation for injuries to or death of workmen shall 
 be repealed or adjudged invalid or unconstitutional, the period intervening 
 between the occurrence of an injury or death and such repeal, or the 
 final adjudication of invalidity, shall not be computed as a part of the 
 time limited by law for the commencement of any action relating to such 
 injury or death, but the amount of any compensation which may have 
 been paid for any such injury shall be deducted from any judgment for 
 damages recovered on account of such injury. 
 
 SECTION 55. As to Constitutionality. In case for any reason any para- 
 graph or any provision of this act shall be questioned in any court and 
 shall be held to be unconstitutional or invalid, the same shall not be held 
 to affect any other paragraph or provision of this act, except that Parts 
 
164 STATE DEPARTMENT OF LABOR 
 
 I and II are hereby declared to be inseparable, and if either pVuV > 
 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 
 I of this act shall not apply in cases where Part II becomes operative in 
 accordance with the provisions thereof, but shall apply in all other cases 
 when the employer is subject to the provisions of this act and in such 
 cases shall be in extension or modification of the common law. 
 
 SECTION 56. Acts Repealed. All acts or parts of acts inconsistent 
 with this act are to be deemed replaced by this act and to that end aro 
 hereby repealed. 
 
 SECTION 57. This act shall be known as the "Workmen's Compensa- 
 tion Law of 1913." 
 
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