UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 BRADBURY'S 
 
 WORKMEN'S COMPENSATION 
 
 AND 
 
 STATE INSURANCE LAW 
 
 UNITED STATES 
 
 A complete analysis of the compensation and state insurance laws of 
 all the States where such acts have been passed, as well as the statutes 
 in complete form, together with the latest British Compensation Act, 
 with numerous notes, comments and explanations. 
 
 Including also an introduction showing the evolution of the em- 
 ployers' liability principle, into the workmen's compensation and state 
 insurance doctrines in this and foreign countries. 
 
 BY 
 
 HARRY B. BRADBURY 
 
 Ml 
 
 OF THE NEW YORK BAR, AUTHOR OF "BRADBURY'S RULES OF PLEADING" 
 
 AND VARIOUS WORKS ON PLEADING AND PRACTICE, ALSO CLAIM 
 
 ATTORNEY OF THE UNITED STATES CASUALTY COMPANY 
 
 THE BANKS LAW PUBLISHING CO. 
 
 NEW YORK 
 
 1912
 
 T 
 
 COPTRIOHT, 1912, BT 
 
 THE BANKS LAW PUBLISHING COMPANY
 
 WITH GRATEFUL ACKNOWLEDGMENT 
 
 to 
 
 MR. EDSON S. LOTT, 
 
 President of the United States Casualty Company 
 
 <*>
 
 PREFACE 
 
 The year 1911 witnessed the beginning of an in- 
 dustrial revolution in America. I say "beginning," 
 because the compensation laws thus far passed are, to a 
 considerable extent, the result of crude efforts to grasp 
 at a principle which has not been understood thor- 
 oughly, in all instances, by the lawmakers. A glance 
 at the varied methods of treating the same subject, 
 by the legislatures of different States, exhibited in 
 the first thirty-seven chapters of this work, will demon- 
 strate one of the worse defects (I might almost say 
 curses) of American lawmaking. Each legislature 
 doubtless thinks it has passed the best statute. Yet 
 the variety is almost infinite. Thousands of employers 
 operate in a number of States. They must learn the 
 intricacies of the laws of each State in computing the 
 final cost of their operations in two or more common- 
 wealths. This book has been published to help solve 
 these problems. The provisions of all the statutes 
 passed thus far, on each particular subject, are com- 
 pared in the first thirty-seven chapters. The texts 
 of the laws themselves, with their paragraphs in 
 their regular order, have been added, as doubtless 
 some readers desire to see them in that form. There 
 has also been added the British Compensation Act of 
 
 v
 
 PREFACE 
 
 The year 1911 witnessed the beginning of an in- 
 dustrial revolution in America. I say " beginning," 
 because the compensation laws thus far passed are, to a 
 considerable extent, the result of crude efforts to grasp 
 at a principle which has not been understood thor- 
 oughly, in all instances, by the lawmakers. A glance 
 at the varied methods of treating the same subject, 
 by the legislatures of different States, exhibited in 
 the first thirty-seven chapters of this work, will demon- 
 strate one of the worse defects (I might almost say 
 curses) of American lawmaking. Each legislature 
 doubtless thinks it has passed the best statute. Yet 
 the variety is almost infinite. Thousands of employers 
 operate in a number of States. They must learn the 
 intricacies of the laws of each State in computing the 
 final cost of their operations in two or more common- 
 wealths. This book has been published to help solve 
 these problems. The provisions of all the statutes 
 passed thus far, on each particular subject, are com- 
 pared in the first thirty-seven chapters. The texts 
 of the laws themselves, with their paragraphs in 
 their regular order, have been added, as doubtless 
 some readers desire to see them in that form. There 
 has also been added the British Compensation Act of 
 
 v
 
 VI PREFACE 
 
 1906. As the constitutional questions are still im- 
 portant there have been appended the decisions of 
 the courts of last resort of New York, Massachusetts, 
 Ohio, Wisconsin and Washington, relating to the laws 
 of those States respectively, together with the decision 
 of the Supreme Court of the United States declaring 
 that state courts may enforce the Federal Employers' 
 Liability Law relating to those engaged in interstate 
 commerce, and defining to a considerable extent the 
 power of Congress to prescribe rules governing the 
 relation of master and servant. 
 
 Prefixed to the work proper is an introduction show- 
 ing the evolution of the employers' liability principle 
 into the workmen's compensation and the state in- 
 surance doctrines, with a discussion of the application 
 of each. Many comments, cross references and eluci- 
 dations have been inserted where the statutes are con- 
 fused, fragmentary or imperfect. Many English, Irish, 
 Scotch and Canadian cases have been added to indicate 
 the trend of judicial interpretation of such statutes. 
 
 This is not a mere digest or a paraphrase of the stat- 
 utes of the various States on the subject of workmen's 
 compensation. It is a reprint of the acts themselves. 
 They are all arranged according to one convenient plan, 
 so that a particular subject can be consulted without 
 hunting through the entire body of the law, at the waste 
 of much time and patience. For example, an investiga- 
 tor desiring to learn who are dependents under any par- 
 ticular statute need only turn to Chapter XVI, and to 
 the title of the State in which he is particularly inter-
 
 PREFACE Vll 
 
 ested. The States are arranged alphabetically in each 
 chapter. 
 
 This book is written partly in the hope of helping to 
 bring about greater uniformity in the compensation 
 laws. Originally the manuscript was compiled for 
 personal use. It was found to be so helpful in prac- 
 tical, everyday application of the various statutes, that 
 it was decided to publish it. 
 
 HARRY B. BRADBURY. 
 
 141 Broadway, New York City, 
 April 10, 1912.
 
 INTRODUCTION 
 
 It has been said that the workmen's compensation 
 principle begins where the employers' liability doc- 
 trine ends. At any rate the two are fundamentally 
 different. It does not require a knowledge of the em- 
 ployers' liability principle to understand the one which 
 underlies workmen's compensation. 
 
 The doctrines of assumption of risk and contributory 
 negligence, and the rule relieving the master from re- 
 sponsibility for injury to one servant caused by the 
 negligence of a fellow servant, known generally as the 
 fellow-servant doctrine, were created by the court and 
 not by statute law. When all three are wiped out by 
 statute the way is left clear to define the liability of 
 a master for injuries caused to his workmen while in 
 his employ. 
 
 Much of the uncertainty and confusion formerly 
 involved in the administration of the law of master 
 and servant will undoubtedly be eliminated under 
 compensation statutes. Payments will be made to a 
 much larger number of injured workmen under the 
 new than were made under the old order. Recovery 
 of excessive "damages" will be impossible, except in 
 those jurisdictions where an election of remedies is 
 allowed to an employe", or where a workman is permitted 
 to try to recover " damages" in a common-law action, 
 and, if unsuccessful, to claim "compensation." l At 
 
 1 The Departmental Committee of England in its report for 
 1904 (p. 93) condemned this provision of the Act of Parliament, 
 saying: "We think the power to assess compensation after un- 
 
 ix
 
 X INTRODUCTION 
 
 the same time the payment of the smaller sums as 
 "compensation" will be much more easily enforceable. 
 The evidence adduced from other countries, where 
 the experiment has been tried, demonstrates that as a 
 rule, in the aggregate, a considerably larger sum will 
 be paid under the compensation laws than was paid 
 as damages under the old employers' liability statutes. 
 The new principle has been adopted with a sudden- 
 ness, however, that has been disconcerting to those 
 whose activities were, to a very considerable extent, 
 confined to an administration of the old law. A some- 
 what rare concurrence of the opinions of those who 
 usually are wide apart in their mental attitudes, has 
 produced a flood of legislation, much of which has 
 not been carefully considered. The opinions of the 
 reformers, the views of the politicians, and the passions 
 and prejudices of the multitude have all been favorable 
 to, and have even demanded, compensation laws. The 
 cry has been "Let each business stand its own losses." 
 The author is in thorough sympathy with this prin- 
 ciple. His occupation as claim attorney for a large 
 casualty company has compelled him to become fa- 
 successful proceedings under the Employers' Liability Act should 
 be repealed. * * * It is no protection whatever to impose upon 
 the workman who fails, the obligation to pay, or the liability to 
 have a deduction of costs from his compensation. The employer 
 has in practice to bear all his own costs, whether he succeeds or 
 not." The same provision is found, nevertheless, in the act of 1906. 
 The principle has not been adopted generally in this country. Some 
 States grant the workman an election whether to demand "dam- 
 ages" or "compensation." Usually, after he has elected to proceed 
 on one theory he is precluded from proceeding on the other. This 
 principle, however, is not universal, and there is a great lack of uni- 
 formity on this as on practically every other feature of the various 
 statutes.
 
 INTRODUCTION XI 
 
 miliar with the terms of the law in each State, which 
 has passed a compensation statute. Each act is con- 
 structed on a different plan. The wording of each is 
 different from any of the others. The various provi- 
 sions relating to particular topics are found sometimes 
 in the early sections, at others in the later ones, and 
 again in the middle of the act. Frequently several 
 topics are mingled together in one section. Again, one 
 topic is often treated in several sections of a single act 
 and one part modifies the other in important par- 
 ticulars. There is a great diversity as to those who 
 come within the provisions of the various acts, the 
 amounts paid and the manner of administering the 
 statutes, while all the acts, in principle, accomplish 
 the same result. The effect of all this is that a par- 
 ticular subject can be found only by the expenditure of 
 a good deal of time and patience. 
 
 To eliminate the difficulty of finding the provision 
 of the law of any particular State, on a specified topic, 
 the first part of this work has been divided into thirty- 
 seven chapters, each topic or chapter, relating to a 
 subject which is easily recognized and understood by 
 anyone who has the slightest familiarity with the law 
 of master and servant, so far as it relates to liability 
 of the master for injuries caused to his servant in the 
 course of his employment. 
 
 These new laws are based, to a very great extent, 
 on the plans which have been tried in other countries 
 to eliminate the unsatisfactory features of the old 
 employers' liability acts. 
 
 Perhaps a short re'sume' of the experience of some 
 of the other countries in which compensation laws 
 have been tried will help to give a clearer understand- 
 ing of the subject than would be possible otherwise.
 
 Xll INTRODUCTION 
 
 While Germany was first in the field with compen- 
 sation laws, it will lead to a better comprehension of 
 the whole subject if, before discussing the German 
 plan, we sketch the English doctrine of employers' 
 liability and show briefly how it has developed into 
 the modern compensation system. This is so because 
 our own statutes have heretofore been modeled largely 
 on the Acts of Parliament, and our judge-made law 
 has followed closely the decisions of the British courts. 
 
 Undoubtedly, the most important chapter in the 
 history of the law of a master's liability for injuries 
 to his servant, is to be found in the case of Priestly v. 
 Fowler, 3 M. & W. 1, decided in England, in 1837. 
 In this decision the court established the doctrine that 
 an employer was not liable for the injuries to one work- 
 man caused by the negligence of a fellow servant. This 
 same doctrine was followed in this country five years 
 later, in a decision written by Chief Justice SHAW, of 
 Massachusetts (in 1842), in the case of Farwell v. Bos- 
 ton, etc., R. Co., 4 Met. 49. Within a short time the 
 same principle was announced by the courts of all 
 the other States as well as by the Federal tribunals. 
 After heated discussion in England the rule promul- 
 gated in the earlier case was confirmed and settled by 
 a decision in the House of Lords, in 1858, in the case of 
 Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Gas. 266. 
 The decisions show that thereafter the doctrine was 
 applied with the greatest rigor in England. Employe's 
 in all grades of employment were held to be fellow 
 servants with those in practically every other grade. 
 General superintendents and general managers were 
 declared to be fellow servants of men in the grades 
 generally of laborers. Conway v. Belfast & Northern 
 R. R. Co., 11 Ir. L. R. 345; Hall v. Johnson, 3 H. & C.
 
 INTRODUCTION Xlll 
 
 589. An ordinary seaman was held to be a fellow 
 servant of the captain. Hedley v. Pinkney & Sons S. S. 
 Co., 1 Q. B. 58; 61 L. J. Q. B. 179. 
 
 In this country the fellow-servant doctrine was not 
 applied uniformly. The rigor of the English decisions 
 was greatly modified by the "alter ego" l principle, 
 which was first applied by the courts. It was subse- 
 quently seized upon by legislators as the basis upon 
 which to construct the later rule, found in many em- 
 ployers' liability acts, to the effect that any person 
 clothed with any authority to direct work or workmen, 
 was not a fellow servant with one who was subject to 
 the direction of the other. Again, the courts in this 
 country held, under certain circumstances, that work- 
 men engaged in different departments of the same 
 establishment were not fellow servants with each other, 
 so far as the laws of negligence were concerned. 
 
 The principles established by the courts and the 
 statutory rules adopted by the legislatures of upwards 
 of forty sovereign States, together with the doctrines 
 of the Federal courts and the Acts of Congress, pro- 
 duced a conglomerate mass of heterogeneous hodge- 
 podge of rules, doctrines and exceptions, which no one 
 pretended to understand. This condition existed as 
 long ago as 1892 when it was commented upon by the 
 Supreme Court of the United States, in the case of 
 Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368. 
 
 The statutory modification began in England in 
 
 1 If the master should employ a superintendent, who, in the ab- 
 sence of the master, was clothed with essentially the same power 
 and discretion which the master could exercise while present, he 
 was held to be the alter ego of the master and not a fellow servant 
 of the master's other employe's. The master therefore was liable 
 for the negligent acts of this alter ego.
 
 XIV INTRODUCTION 
 
 1880 (43 and 44 Victoria, c. 42), by the enactment of 
 a law known as the Employers' Liability Act of that 
 year. The avowed purpose of the statute was to "bring 
 back the law to what it was supposed to be in England 
 before the case of Priestly v. Fowler." 
 
 While the British Act of 1880 made the employer 
 liable for injuries to workmen due to defective ways, 
 works, machinery and plant or caused by improper 
 by-laws or lack of instructions, its chief effect on the 
 then-existing doctrines of the law of master and servant, 
 related to the fellow-servant rule. It declared that the 
 master should be liable for injuries to an employ^ when 
 caused by a the neglect of his superintendents," the 
 "neglect of persons to whom he delegated his powers of 
 giving orders," and in "the case of railway companies 
 for the negligent management of trains, points and 
 signals." 
 
 If we were quick to follow the decisions of the Eng- 
 lish courts, in the first instance, in establishing the 
 fellow-servant doctrine, we were equally alert in adopt- 
 ing employers' liability laws, founded on the Act of 
 Parliament of 1880. 
 
 But again the views of upwards of forty legislative 
 bodies, each jealous of its own opinions and its own 
 prerogatives, produced an equal number of employers' 
 liability laws, no two of which were alike. Congress 
 also took a hand. The National Legislature, being 
 confined in its activities to those occupations which 
 related to interstate commerce, adopted statutes which 
 largely modified, and in some instances nullified, the 
 state laws. This was true even though the employer 
 and the employe, who were parties to a particular suit, 
 were both residents of the same State, where the ac- 
 cident happened and where the suit was brought, and,
 
 INTRODUCTION XV 
 
 even though, under the recent decision by the United 
 States Supreme Court, the suit was brought in the 
 state tribunal of the commonwealth where both par- 
 ties resided. Second Employers' Liability Cases, 223 
 U. S. I. 1 
 
 The British Employers' Liability Act proved to be 
 unsatisfactory for reasons which have been discussed 
 frequently and exhaustively. Efforts were made on 
 several occasions to introduce the compensation feature, 
 but without success, until 1897, when the first com- 
 pensation act was passed by the British Parliament. 
 This act was amended in 1900, and again in 1906, 
 after thorough discussion, and after consideration of 
 the report of a committee 2 appointed to investigate 
 the subject. The text of the Act of 1906 will be found 
 in this work. 
 
 The British Act has none of the features of what is 
 known in this country as " State Insurance." The 
 liability for compensation is entirely personal to the 
 employer. It does permit the formation of mutual 
 associations either by a number of employers or by a 
 single employer. But this feature of the statute is 
 almost a dead letter. Such associations were allowed 
 while the employers' liability laws were in force and a 
 considerable number of them were formed thereunder. 
 They began to decline as soon as the compensation 
 law was adopted and at the present time very few of 
 them are in existence. The reason for this condition 
 of affairs appears to be the discontinuance of the em- 
 ployers to contribute to the funds which had thereto- 
 fore been supported by contributions from both em- 
 ployers and employes. The governmental committee, 
 
 1 These decisions will be found in Chapter XXXIX of this work. 
 
 2 Report of Departmental Committee of 1904.
 
 XVI INTRODUCTION 
 
 which investigated this matter, reported, in effect, 
 that under the Compensation Act the burdens on the 
 employers are so great that they "can hardly be ex- 
 pected to contribute to these funds as well as to bear 
 the burden thrown upon them by the Act." l 
 
 The British Act of 1906 covers all employers, in- 
 dividual and corporate, in every employment. In 
 addition to compensation for accidental bodily inju- 
 ries it is also allowed for disability flowing from six 
 specified occupational diseases and such other diseases 
 of that nature as are specified by the Secretary of State. 
 No workman who earns more than 250 (approximately 
 $1,250) per year is entitled to compensation, unless 
 he is engaged in manual labor, in which event his 
 earning capacity is immaterial. The employer cannot 
 relieve himself from the obligations of the Compensa- 
 tion Act by contract, except where some substitute 
 scheme is agreed upon. If the injury is caused by the 
 workman's own serious and willful misconduct com- 
 pensation is not allowed, unless death or serious and 
 permanent disability results. 2 The workman has the 
 absolute right of election, after the accident has hap- 
 pened, to sue at common law for "damages" or demand 
 "compensation." If his action for damages fails he 
 may still request the court to assess compensation in 
 his favor. The court may, under such circumstances, 
 require the workman to pay all or a portion of the 
 costs of the unsuccessful action at law for damages. 
 This provision was severely condemned by the Com- 
 
 1 Report of Departmental Committee (1904), p. 24. 
 
 2 This provision of the British act is remarkable for its sym- 
 pathetic humanitarianism, if not for its equity. No matter how 
 willful the misconduct of a workman may be if death or serious and 
 permanent disability ensues compensation must be paid.
 
 INTRODUCTION XVII 
 
 mittee ! which made an investigation in 1904, but was 
 nevertheless retained in the revision of 1906. 
 
 The employe must be disabled at least one week from 
 earning full wages at his employment before he is en- 
 titled to compensation. Notice of the accident must 
 be given as soon as practicable after its occurrence and 
 before the injured person voluntarily leaves the service 
 of the employer. The workman who claims compen- 
 sation must submit to a physical examination by a duly 
 qualified physician, whose services shall be paid for 
 by the employer. The employer and the employ^ may 
 agree upon the compensation to be paid and in case 
 of dispute arbitration may be had. They can either 
 agree on the arbitrators or apply to the county judge 
 who shall sit as an arbitrator. During his incapacity 
 the workman is entitled to receive weekly payments 
 not exceeding 50% of his previous weekly earnings and 
 in no event more than 1 ($5) per week, the specific 
 amount being determined by the degree of incapacity. 
 
 In case of death the amount paid to the dependents 
 is not less than 150 ($750) nor more than 300 ($1,500). 
 If the workman leaves no dependents the employer is 
 obligated to pay not to exceed 10 ($50) for medical 
 and funeral expenses. 
 
 The compensation when paid is not subject to attach- 
 ment in the hands of the workman. In the event of 
 
 1 See Report of Departmental Committee of 1904, p. 19. The 
 committee declared that "this has been found to offer a strong 
 temptation to the less scrupulous class of solicitors to bring specu- 
 lative actions on behalf of their clients under the Employers' Lia- 
 bility Act, or in some cases at common law with a view to driving 
 the employer to settle on advantageous terms. * * * We think that 
 this provision has worked largely to the disadvantage of both em- 
 ployer and workman and is responsible for a large quantity of 
 illegitimate litigation."
 
 XV111 INTRODUCTION 
 
 the insolvency of the employer a workman is a pre- 
 ferred creditor to the extent of 100 ($500), and in 
 case the employer is insured the claim vests in the 
 workman against the insurance company to the same 
 extent that it vested in the employer. The full text 
 of the British Act of 1906 will be found in Chap- 
 ter XXXVIII. 
 
 In Germany the first compensation law was enacted 
 on July 6, 1884. This was re-enacted and the provi- 
 sions thereof extended on May 28, 1885, and again on 
 May 5, 1886, to cover agricultural and horticultural 
 pursuits and forestry. It was further extended on 
 July 11, 1887, and July 13, 1887, and finally, in the 
 year 1900, the various laws were to a certain extent 
 unified. 
 
 Large and small industries are organized into em- 
 ployers' associations, grouped according to callings. 
 These associations are self-governing bodies, and every 
 employer is compelled by law to join the one represent- 
 ing his craft or trade. Upon these organizations is 
 placed the responsibility of carrying on and adminis- 
 tering the accident compensation system. The govern- 
 ment has a supervising power over them, but the officers 
 are all chosen by the members of the associations them- 
 selves, and these officers act without pay. 
 
 For the first thirteen weeks the pension of injured 
 workmen is paid out of the sickness fund, which is 
 supported by the employes and employers jointly, the 
 employes contributing two thirds and the employers 
 one third. 
 
 If the incapacity lasts more than thirteen weeks the 
 insurance associations then become responsible. They 
 furnish free medical attendance, including medicines, 
 supports, crutches, etc. They pay pensions up to
 
 INTRODUCTION XIX 
 
 two-thirds of the annual wage rate for total disability, 
 and in proportion for partial disability. In cases of 
 complete disability, requiring nurses and attendance, 
 pensions up to 100% of the annual wage may be al- 
 lowed. 
 
 Dependents receive free treatment in hospitals or 
 sanitariums and pensions of a maximum of 60% of 
 the wages of the workmen. 
 
 It has sometimes been said that the German plan 
 was a state insurance scheme. Nothing could be further 
 from the truth. 1 The Government maintains a some- 
 what strict supervision over the insurance associa- 
 tions, but it neither collects nor pays the funds which 
 eventually go to the workmen as compensation for 
 injuries. The funds are collected by the insurance 
 associations from among their members. They ad- 
 minister the fund through officers chosen by them- 
 selves, most of whom act without pay. The Government 
 supervises the fund, (except that it does not require 
 sufficient reserves), in much the same way that the 
 various insurance departments of the States of the 
 Union, supervise the insurance companies doing busi- 
 ness therein. Upon the failure of the employe" to secure 
 such an award as he deems himself entitled to receive 
 there is a system of appeals by which the controversies 
 are disposed of, finally by the Insurance Department. 
 
 1 "Germany is frequently referred to as the country which best 
 exemplifies State insurance. The fact is that in Germany, as has 
 been stated, accident insurance is conducted entirely by mutual 
 associations of employers supervised by the State, which furnishes 
 little more than the compulsion and supervision. Even hi Austria, 
 although the State through persons appointed by it, takes a limited 
 part in the management of these mutual associations of employers, 
 it has not accepted financial responsibility." Workingmen's In- 
 surance in Europe Frankel and Dawson, p. 33.
 
 XX INTRODUCTION 
 
 Both the Government and the insurance associations 
 have given a good deal of study to accident prevention. 
 Elaborate and accurate statistics have been compiled. 
 Accident prevention has become a science and a pro- 
 fession. Disobedience to rules relating to safety in- 
 volves the infliction of penalties which are severe in 
 some instances. 
 
 The general opinion of German employers and 
 government officials is that the system works well. 
 Nevertheless there is serious complaint of malinger- 
 ing and exaggerated claims. The measures taken for 
 accident prevention have not proved as successful as 
 it was hoped they would. Probably the Germans 
 would refuse to make any radical change in the sys- 
 tem, although admitting some abuses. 
 
 It is doubtless true that the foregoing statement 
 will not be accepted without dispute. The opinion 
 expressed is founded, to a considerable extent, on 
 the letters from representative men printed in an ap- 
 pendix to Accident Prevention and Relief, by Schwedt- 
 man and Emery. The chief authority for the opinion 
 that the German system is unsatisfactory is to be 
 found in the article by Dr. Ferdinand Friedensburg, 
 who for many years was a member of the Senate of the 
 Imperial Insurance Office. Dr. Friedensburg's article 
 is rather pessimistic in tone. Some students of the 
 subject have shown a disinclination to accept his 
 opinions at their face value. This is especially true in 
 view of the more or less earnest praise for the system 
 contained in the letters printed in the appendix to 
 Accident Prevention and Relief to which reference has 
 already been made. Among other things Dr. Friedens- 
 burg says: 
 
 "In the very first year of accident insurance (1886),
 
 INTRODUCTION XXI 
 
 15,863 pensions amounting to 1,547,593 marks (about 
 $400,000) were granted; this including indemnifica- 
 tion for the most insignificant injuries resulting in. a 
 loss of 3 to 5 per cent of earning capacity. 
 
 "But recently there has become audible an increas- 
 ing volume of protest from large organizations, worthy 
 of respect in every way, that authoritatively voice 
 the complaints of the tradesman, both small and great, 
 expressly denying from the very start all hostility to 
 workingmen's insurance in the abstract; they show 
 how gravely German industry is handicapped in com- 
 petition with foreign markets by the cost of insurance, 
 which can now be characterized by nothing short of 
 monstrous amounting, as it does, to almost exactly 
 2,000,000 marks ($500,000) daily. 
 
 "If disregarding the burdens of taxation, we con- 
 sider simply the burdening of our industrial activity 
 with social assessments, we reach the result that even 
 to-day the burden of contributions to insurance caused 
 by this social policy alone amounts to nearly 800,000,000 
 marks ($160,000,000) annually. We must therefore 
 soon reckon with a burden of about 1,250,000,000 
 marks ($250,000,000) each year laid upon our indus- 
 trial activity simply and solely for purposes of social 
 insurance. 
 
 "Unfortunately, the employers of moderate or of 
 scanty means are the very ones from whom the con- 
 tributions to the various classes of insurance exact 
 a percentage of running expenses that becomes more 
 and more oppressive. Unlike larger firms, they are 
 unable to recoup themselves by their power to set 
 prices, which are determined independently of them; 
 and, although relatively few complaints have thus far 
 been heard from these circles, this is very possibly
 
 XX11 INTRODUCTION 
 
 because the more personal controversies between em- 
 ployer and employe, which in the labor world are 
 the characteristic of time, give rise to even more bit- 
 terness and anger than these contributions to the 
 Trades Associations. Only recently the Prussian 
 Minister of Finance has shown, by actual statistics, 
 how the workingman submits to a taxation by his 
 'colleagues' that would undoubtedly drive him to 
 revolution if it were the State that levied it. An ad- 
 ditional factor is terror of the Social Democrats; and, 
 in pursuance of a train of thought that was vaguely 
 felt by the original legislator, and which we shall con- 
 sider again at the close of our study, it was believed 
 that the threatening perils of Social Democracy might 
 be averted by contributions toward the insurance 
 fund that the workingmen might be bought off, so 
 to speak, from revolution. The extreme unwilling- 
 ness to incur disfavor with this party is clearly shown 
 by the attitude of a witness in the Moabit Riot trial, 
 who, when asked if he belonged to it, first answered 
 with a decided denial, then declared that he did, and 
 ended by saying that he 'belonged to no party.' 
 
 "Should there come times when our industrial ac- 
 tivity or even merely essential parts of it should no 
 longer be able to meet the social obligations legally 
 imposed upon it, then there will be no alternative 
 except for the State as the State to assume those bur- 
 dens if it is to avoid a catastrophe whose scope none 
 can foresee even so far as social conditions will be 
 concerned. 
 
 "The question of the degree of earning capacity 
 still possessed by an injured person is by far the most 
 frequent problem for decision. Yet even here and 
 again with entire justice certain fixed principles
 
 INTRODUCTION 
 
 have been developed, as that the loss of an eye regu- 
 larly entitles a workingman to from 30 to SSVs per 
 cent of the pension for complete loss of earning capacity. 
 This very principle is one of those most constantly 
 opposed. The Trades Associations have given the 
 Office long extracts from the pay rolls which prove 
 beyond all doubt that very many workingmen-if not 
 the majority of them receive, after losing an eye, 
 precisely the same wages as those who have suffered 
 no injury, and as they themselves did previous to 
 their accident. A still more curious result arises from 
 certain combinations of injuries to the hands or fingers. 
 It has been shown that such injuries, when received 
 in brawls or in other ways unconnected with the work- 
 ingman's occupation, do not prevent him from gaming 
 his old wages within a short time, for the adaptability 
 and habituation of the human body are nothing short 
 of marvelous. Nevertheless, an industrial accident 
 with exactly the same results was indemnified with 
 the pension of 30 per cent, or even more. There are 
 workingmen, especially among those engaged in the 
 wood industry, who draw pensions of from 30 to 40 per 
 cent for two, three, and even four accidents of this 
 type, which are very frequent in their occupation; 
 and yet earn full wages. 
 
 "The question whether an accident is to be regarded 
 as incurred in the pursuit of an occupation, whether 
 it is, in other words, to be indemnified by an accident 
 pension, would seem at first blush to be the problem 
 that might most readily be solved by legal considera- 
 tions, so that here benevolence would appear to have 
 its smallest range of action. Experience, however, 
 teaches a very different lesson. It is a recognized 
 principle that accident insurance is awarded only for
 
 xxiv INTRODUCTION 
 
 injury by an actual accident, not for a sickness which 
 the insured has contracted in consequences of his trade 
 employment. Accordingly, every possible effort has 
 been made to construe the law so as to make the 
 Trades Association responsible in these cases as well. 
 Industrial accident is assumed, not only in cases where 
 the injury results from a single, sudden occurrence, 
 but also where the injurious process did and must 
 continue for some time in order to produce an effect 
 prejudicial to earning capacity, such as colds as a re- 
 sult of working in water, heat stroke from remaining 
 in excessive heat, paralysis from working in rooms 
 where electric machines are in operation, and the like. 
 A precisely similar problem emerges in cases where 
 a sickness latent in the person insured breaks out in 
 consequence of some process connected with his oc- 
 cupation, as happens, for instance, when persons with 
 a tendency to consumption are obliged to lift and 
 carry. 
 
 "That accidents incurred while on the way to work 
 cannot be deemed industrial accidents scarely requires 
 proof, and yet all kinds of indirect ways have been 
 devised to help those who have thus been injured to 
 secure pensions, so that many grants have been made 
 in cases where the employe chanced to be carrying 
 a tool which contributed to the accident, or where 
 his employer directed him to take a certain road, or 
 to attend to this or that on the way, and the like. 
 
 "In 1886 the accidents reported were 100,159, and 
 damages were awarded in 10,540 cases; in 1908 these 
 figures were 662,321 and 142,965 respectively. 
 
 [ 'The law sought also to protect the workingman 
 against accidents due to carelessness and inattention, 
 and it accordingly authorized the employer to frame
 
 INTRODUCTION XXV 
 
 prohibitions designed to obviate any possible dangers 
 arising from this cause. Acting on this principle, juris- 
 diction long maintained that a workingman who dis- 
 obeyed such a prohibition which had been made prop- 
 erly effective placed himself 'outside his industry,' and 
 accordingly lost all claim to a pension in case of ac- 
 cident. This ruling has recently been abandoned. 
 
 "It is almost absurd to see how considerations 
 adopted in special cases to grant a pension under 
 circumstances that would normally exclude it, pene- 
 trate into the remotest corners and become the com- 
 mon property of all pension hunters. The Imperial 
 Insurance Office once decided that an accident re- 
 ceived while chopping wood should be indemnified be- 
 cause it was shown that the wood in question was 
 being chopped to boil fodder for cattle. Since that 
 time at least if the allegations of claimants for pen- 
 sions may be believed cattle have never and nowhere 
 received fodder that was not boiled, nor has wood 
 ever been chopped except to boil such fodder. 
 
 "Even in everyday life many sickly persons are 
 inclined to overrate and exaggerate their ills and aches, 
 and the popular modern complaint of nervousness 
 has essentially fostered this weakness in general. 
 Now insurance furnishes a shockingly fertile soil for 
 this sort of nonsense, and here grows the evil and 
 envenomed weed of pension hysteria, one of the most 
 melancholy consequences of our workingmen's insur- 
 ance. Whoever, in the course of his occupation, re- 
 ceives an injury, which may be of the most trivial 
 nature and which, as has already been shown in the 
 case of injuries to the hand would not disturb him 
 in the least under other circumstances, guards it 
 like a veritable treasure and tends it like a milch cow.
 
 XXVI INTRODUCTION 
 
 From unconscious exaggeration to direct invention, 
 from neglect of the treatment prescribed to the arti- 
 ficial keeping open of wounds, daily, and in the case 
 of the majority of those injured, there is found a grada- 
 tion of the most diverse efforts to render their condi- 
 tion suitable for the payment of a pension. Every 
 sickness and injury a man either has or ever has had 
 is brought into connection with the accident, the 
 allegation being either that the sickness or injury was 
 caused or aggravated by the accident, or that it is to 
 be regarded as accelerating its own normal conse- 
 quences. Frequently an accident is deliberately in- 
 vited, and is then made to serve as a plea for a pension 
 claim, in harmony with the jurisdiction already de- 
 scribed in cases of combinations of sickness and acci- 
 dent. Whether the injury is great or small makes no 
 difference. Improvement is the last thing ever to be 
 acknowledged. Any thought of decreasing a pension 
 is normally answered with the assertion that the trouble 
 is growing worse, if not with a demand that the pen- 
 sion be increased, and in this way an accident forms 
 the starting-point of a series of suits which frequently 
 do not end even at the death of the man injured, 
 since a pensioner having other persons dependent upon 
 him can scarely die except as a result of an accident 
 received in the course of his occupation, however long 
 ago this accident may have occurred, and however 
 remote its cause, medically speaking, from his last 
 illness. 
 
 "Here again is manifested the lamentable phe- 
 nomenon of the transformation of reason into folly 
 and of the change of benefits intended into injuries. 
 There is an alarmingly large number of the injured 
 who are absolutely unwilling to be cured. The regula-
 
 INTRODUCTION XXVli 
 
 tion that the insurance carrier must sustain the costs 
 of cure gives them a welcome opportunity to enjoy 
 themselves in every way on another's money, since 
 they can almost invariably find a compliant physician 
 who will certify that the expenditures desired are neces- 
 sary and proper, regardless of their relation to the 
 patient's former modes of life and his social surround- 
 ings. 
 
 "The cost of the insurance was to be compensated 
 for because it would aid in lessening the burdens of 
 the poor. Curiously enough, very little is now heard 
 regarding this promise. In reality, expenditures for 
 the poor have increased almost everywhere, both as 
 regards the number of those who are supported and as 
 regards the degree of support which is given in indi- 
 vidual cases. 
 
 "In an age which, in Prince Billow's words, cannot 
 abase itself low enough before 'King Mob,' this judg- 
 ment has scant prospect of success. This was self- 
 evident to me from the very instant that I began my 
 task, yet I deem it a deed well done to have called 
 attention once again to the all-pervading cancer that 
 is destroying the vitals of our State." 
 
 Italy has a workman's compensation law and also a 
 compulsory insurance statute. The insurance may be 
 taken with any insurance company authorized to carry 
 on business in Italy, in private accident insurance funds 
 or in the National Accident Insurance Fund. The 
 latter is not a State Department. It is conducted by 
 a number of savings banks with the co-operation and 
 assistance of certain government officials. A large 
 portion of the expense of administration is paid by the 
 Government from general taxation. 
 
 France has a compensation but not compulsory in-
 
 XXV111 INTRODUCTION 
 
 surance act. The law is very complicated, but con- 
 tains many safeguards against insolvency of employers 
 the principal of which is a National Guarantee Fund 
 from which compensation is paid to the employes who 
 are entitled to compensation under the act but are 
 not otherwise protected. 
 
 In Norway a compensation law on a state insurance 
 plan went into effect on July 1, 1895. It covers manu- 
 facturing only, however; agriculture, fisheries and 
 shipping not being included. Insurance must be taken 
 in all cases by the employer in the State Department. 
 Administration expenses are paid by the State out of 
 general taxes, the department being managed by 
 governmental appointees. In non-fatal cases the em- 
 ploy6 after four weeks is entitled to medical treatment 
 either at home or in a hospital. The expenses of the 
 first four weeks of illness due to an accident are borne 
 by the sickness insurance societies if the workman is 
 insured. Otherwise the employer must bear this ex- 
 pense. The workman may receive as high as 60% 
 of his wages while disabled with a maximum limit, 
 however, of 60 crowns ($16.20) per month. 
 
 Sweden has a compensation law but the liability is 
 left entirely to the employer, who may carry his own 
 risk or insure in a stock or mutual company or in the 
 State Department. Only by insuring in the State De- 
 partment, however, can he be relieved from all further 
 liability. 
 
 Denmark has a compensation law, but without state 
 insurance features. 
 
 Belgium has a compensation law, but not compulsory 
 insurance. Employers escape liability, however, by 
 insuring in a Belgian company approved by the State. 
 The State Department of Insurance also has power to
 
 INTRODUCTION XXIX 
 
 insure employers against liability, but it has not exer- 
 cised this power. A "Guarantee Fund" to insure 
 those entitled to compensation against the bankruptcy 
 of their employers has been established by the State. 
 It is supported by contributions levied upon employers. 
 
 Holland has a compensation law with compulsor3 r 
 insurance features. But the employer may insure in 
 any of the " recognized" insurance companies. Em- 
 ployers who can demonstrate their ability to carry their 
 own risks and provide payment for their injured work- 
 men are not compelled to insure. There is also a state 
 insurance fund. It is optional with the employer 
 whether to contribute to the state fund or secure in- 
 surance from a stock or mutual company. 
 
 According to Frankel and Dawson the State Depart- 
 ment is facing a considerable deficit. 1 This is due, to 
 a considerable extent, according to the same authority, 
 to the fact that the State Department must accept 
 any risk while the private companies may discriminate. 
 
 In the United States up to this time four general 
 forms of compensation laws have been adopted. 
 
 In the State of Washington a statute has been passed 
 and is now in operation which is generally designated 
 as a " State Insurance Law." The name is somewhat 
 of a misnomer. While the State, through a commission, 
 collects and disburses the insurance fund, it does not 
 in any sense guarantee payments, and when, in any 
 particular industry, insufficient funds are collectible 
 to pay the awards, they simply remain unpaid. The 
 law had been in effect only a short time when this 
 very condition arose. There were only three powder 
 manufacturers in the State. An explosion in the mill 
 
 1 Workingmen's Insurance in Europe, p. 59,
 
 XXX INTRODUCTION 
 
 of a small concern at Chehalis in the State of Washing- 
 ton, resulted in the loss of seven or eight lives. The 
 Commission made awards to the dependents of those 
 killed, but there was very little money available to pay 
 these awards, because very small sums had been col- 
 lected from the powder manufacturers, and the awards 
 to these dependents are still unpaid. The theory of 
 the Washington law is that only the sums collected 
 from each industry shall be used to pay for the in- 
 dustrial accidents in that industry. The weakness of 
 the system is apparent when applied to a single State 
 with the limited insurance average in respect to cer- 
 tain industries containing only a few plants in a par- 
 ticular commonwealth. It amounts practically to those 
 plants carrying their own insurance. The only way 
 in which an employer in the State of Washington can 
 take advantage of the compensation principle is to 
 adopt the state insurance scheme. Moreover, the 
 Washington law is mandatory and requires every 
 employer in certain industries to contribute to the 
 state insurance fund and imposes somewhat severe 
 penalties for his refusal. 
 
 In Ohio the statute is generally termed an "optional 
 state insurance law." It is optional only in the fact 
 that an employer may adopt the state insurance plan 
 or not, as he chooses, but the only way he can embrace 
 the compensation principle is to adopt state insurance. 
 As to those who come under the state insurance scheme 
 the plan of operation is much the same as that contained 
 in the Washington law. In both the Ohio and Washing- 
 ton statutes the workmen can appeal from the refusal 
 to make an award or because of the inadequacy thereof. 
 But no appeal lies on behalf of the employers who have 
 to pay the compensation. The decisions of the Com-
 
 INTRODUCTION XXXI 
 
 mission are absolutely final so far as the employers are 
 concerned. 
 
 In Massacnusetts the employer must insure in "any 
 liability insurance company authorized to do business" 
 within the State or become a subscriber to the Massa- 
 chusetts Employers' Insurance Association. The com- 
 pensation is paid upon awards made by the Industrial 
 Accident Board. The Massachusetts Employers' As- 
 sociation is a mutual company first organized by 
 directors appointed by the Governor and subsequently 
 operated by directors elected from the employers who 
 are members. This company receives no financial 
 support from the State, except a small initial appro- 
 priation to pay preliminary expenses and a loan of 
 $100,000, which must be repaid. It must collect from 
 the employers who are members enough to pay the 
 awards to injured workmen and their dependents made 
 by the State Board and also operating expenses. There 
 is no provision for raising funds except by assessments 
 on the members. There is a provision for classification 
 of industries. Upon the failure of the employer to in- 
 sure his common-law defenses are eliminated in both 
 Ohio and Massachusetts. 
 
 The other States have passed optional compensa- 
 tion laws the liability being purely personal with the 
 employer. Optional laws were passed because of the 
 decision of the Court of Appeals in New York, in the 
 case of Ives v. Svuth Buffalo Ry. Co., 201 N. Y. 271, to 
 the effect that a mandatory law was unconstitutional. 
 Some of these statutes provide that the election to 
 adopt compensation may be exercised by the employer 
 remaining quiescent, and taking no action whatever. 
 The New Jersey law is of this type. Others require 
 the employer to take some affirmative action to in-
 
 XXX11 INTRODUCTION 
 
 dicate that he has elected to come under the compen- 
 sation statute. Such is the Act of Wisconsin. It has 
 been felt that there could be no doubt as to the con- 
 stitutionality of those acts which required both the 
 employer and the employe to show their election by 
 some affirmative act while there was some doubt as to 
 the binding effect of the implied election from silence. 
 It has seemed to the author that this distinction was 
 of very little importance. We are all familar with the 
 laws which permit the waiving of such a sacred right 
 as trial by jury, by silence. This principle is surely 
 as important as the one relating to compensation 
 statutes. 
 
 The various laws have been described in detail else- 
 where in this work.
 
 CHAPTER HEADINGS 
 
 CHAPTER PAGE 
 
 I. ABOLITION OF DEFENSES; ELECTION OF REMEDIES . 1 
 II. To WHOM ACT APPLIES 39 
 
 III. LIABILITY OF PRINCIPAL CONTRACTOR FOR INJURIES 
 
 TO WORKMEN OF SUBCONTRACTOR . . . . 176 
 
 IV. CONTRACTS EXEMPTING EMPLOYERS FROM OPERATION 
 
 OF ACT 188 
 
 V. TIME WITHIN WHICH NO COMPENSATION is ALLOWED 
 
 EXCEPT MEDICAL AID 193 
 
 VI. MEDICAL ATTENTION 197 
 
 VII. FUNERAL EXPENSES 202 
 
 VIII. COMPENSATION TO DEPENDENTS IN CASE OF DEATH 206 
 IX. COMPENSATION FOR TOTAL OR PERMANENT DISA- 
 BILITY 234 
 
 X. COMPENSATION FOR PARTIAL OR TEMPORARY DIS- 
 ABILITY 274 
 
 XI. COMMUTATION OF AWARD OR AGREED COMPENSATION 
 BY PRESENT PAYMENT OF LUMP SUM, BY ANNUITY 
 
 OR OTHERWISE 294 
 
 XII. DEFINITION OF PERMANENT TOTAL DISABILITY . 303 
 
 XIII. DEFINITION OF TEMPORARY TOTAL DISABILITY . 306 
 
 XIV. DEFINITION OF PERMANENT PARTIAL DISABILITY . 309 
 XV. DEFINITION OF TEMPORARY PARTIAL DISABILITY . 312 
 
 XVI. WHO ARE DEPENDENTS 314 
 
 XVII. DEFINITIONS NOT OTHERWISE CLASSIFIED . . 334 
 XVIII. GARNISHMENT OR SEIZURE OF AWARDS FOR DEBTS, 
 
 AND ASSIGNMENTS OF AWARDS .... 342 
 
 XIX. ATTORNEY'S FEES 346 
 
 XX. SUBROGATION BY AND AGAINST EMPLOYERS, INSUR- 
 ANCE COMPANIES AND OTHERS .... 350 
 XXI. NOTICE OF CLAIM UNDER ACT; WHEN REQUIRED; 
 
 How SERVED; FORM OF NOTICE .... 358 
 XXII. LIMITATIONS ON ACTIONS AND PROCEEDINGS UNDER 
 
 ACT 376 
 
 XXIII. EXAMINATIONS BY PHYSICIANS .... 383 
 
 XXIV. BY WHOM LAW ADMINISTERED AND HOW AWARDS 
 
 DETERMINED; FORMS OF PETITIONS, ANSWERS AND 
 AWARDS 396 
 
 xxxiii
 
 XXXIV CHAPTER HEADINGS 
 
 CHAPTER PAGE 
 
 XXV. REVIEWING AWARDS BY APPEAL. .... 451 
 XXVI. MODIFYING AWARDS OTHERWISE THAN BY APPEAL . 468 
 XXVII. MANNER OF CREATING STATE INSURANCE FUND 
 OR OTHER ALTERNATIVE PLAN IN THE COMMON- 
 WEALTHS WHERE THEY ARE REQUIRED OR PER- 
 MITTED 493 
 
 XXVIII. PENALTIES FOR FAILURE TO COMPLY WITH LAW . 531 
 
 XXIX. REPORTS OP INJURIES AND AWARDS . . . 535 
 
 XXX. WHEN LAWS BECOME EFFECTIVE .... 547 
 
 XXXI. FEES AND COSTS 551 
 
 XXXII. PREFERENCES OF CLAIMS AND AWARDS FOR COM- 
 PENSATION 556 
 
 XXXIII. ENFORCEMENT BY WORKMEN OF CLAIMS FOR COM- 
 
 PENSATION DIRECTLY AGAINST LIABILITY INSUR- 
 ANCE COMPANIES '. 560 
 
 XXXIV. INSURANCE CONTRACTS PRESUMED TO BE SUBJECT TO 
 
 ACT 567 
 
 XXXV. COMPROMISING CLAIMS AND AWARDS ... .571 
 XXXVI. EXPENSES OF ADMINISTERING LAW, OTHER THAN 
 
 PAYMENTS OF AWARDS FOR COMPENSATION . . 579 
 
 XXXVII. REPEALING ACTS 584 
 
 XXXVIII. CONSTITUTIONAL DECISIONS 592 
 
 XXXIX. TEXTS OF COMPENSATION ACTS , 852
 
 TABLE OF CASES REPORTED 
 AND CITED 
 
 B. W. C. C. = Butterworth's Workmen's Compensation Cases. 
 W. C. C. = Workmen's Compensation Cases. 
 
 Page 
 
 Aberdeen Steam Trawling & 
 Fishing Co. v. Gill (1907), 
 45 Scotch L. R. 247; 1 B. 
 W. C. C. 274 115 
 
 Ableman v. Booth, 21 How. 
 506 850 
 
 Abraham Coal Co. v. South- 
 ern (1903), 5 W. C. C. 125 247 
 
 Adair v. United States, 208 
 U. S. 161.. 796, 803, 806, 
 
 809, 813, 830, 838 
 
 Adams v. Shaddock (1905), 
 
 2 K. B. 859; 8 W. C. C. 58 334 
 Addyston P. & S. Co. v. 
 
 United States, 175 U. S. 
 
 211 825 
 
 Admital Fishing Co. v. Rob- 
 inson (1910), 102 L. T. 203; 
 
 3 B. W. C. C. 247 115 
 
 Alabama G. S. Ry. Co. v. 
 
 Coggings, 88 Fed. Rep. 455 819 
 Allgeyer v. Louisiana, 165 
 
 U. S. 578; 17 Sup. Ct. 427; 
 
 41 L.Ed. 832 735,830 
 
 Anderson v. Balfour (1910), 
 
 44 Irish L. T. 168; 3 B. W. 
 
 C. C. 588 49 
 
 Anderson v. Fife Coal Co. 
 
 (1909), 47 Scotch L. R. 5; 
 
 3 B. W. C. C. 539. . 76 
 
 Andrew v. Failsworth Indus- 
 trial Soc. (1904), 90 L. T. 
 611; 6 W. C. C. 11 49,102 
 
 Anglo-Australian Steam Nav- 
 igation Co. v. Richards 
 (1911), 4B. W. C. C.247.. 479 
 
 Anley's Executors v. Neale 
 (1907), 9 W. C. C. 34 277 
 
 Anslow v. Cannock Chase 
 Colliery Co. (1909), 100 
 L. T. 786; 2 B. W. C. C. 365 244 
 
 Appleby v. The Horseley Co. 
 & Lovatt (1899), 80 L. T. 
 853; 1 W. C. C. 103 243 
 
 Armitage v. Lancashire and 
 Yorkshire Ry. Co. (1902), 
 86 L. T. 883; 4 W. C. C. 5 101 
 
 Arnott v. Fife Coal Co., 
 (1911), 48 Scotch L. R. 
 828; 4 B. W. C. C. 361.... 236 
 
 Assaria State Bank v. Dolley, 
 219 U. S. 121 643, 645, 646 
 
 Astley v. R. Evans & Co. 
 (1911), 104 L. T. 373; 4 B. 
 W. C. C. 209; aff'd 4 B. W. 
 C. C. 319 104, 105 
 
 Atchison, T. & S. F. R. R. 
 Co. v. Matthews, 174 U. S. 
 96; 19 Sup. Ct. 609; 43 L. 
 ed. 909 720 
 
 Atlantic, etc., Tel. Co. v. 
 Philadelphia, 190 U. S. 160 797 
 
 XXXV
 
 XXXVI TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 Atlantic Coast Line R. R. 
 Co. v. Riverside Mills, 219 
 U. S. 186. . . .803, 805, 842, 843 
 Atrader v. Baldwin, 9 How. 
 261 799 
 
 B 
 
 Babcock & Wilcox v. Young 
 
 (1911), 48 Scotch L. R. 
 
 298; 4 B. W. C. C. 367.... 251 
 Bacon v. U. S. Mutual Acci- 
 dent Assn., 123 N. Y. 304. 69 
 Bacon v. Walker, 204 U. S. 
 
 311; 27 Sup. Ct. 289; 51 L. 
 
 Ed. 499 725 
 
 Bagnall v. Levinstein (1906), 
 
 96 L. T. 184; 9 W. C. C. 100 119 
 Bailey v. Interstate Gas Co., 
 
 8 App. Div. 127; 40 Supp. 
 
 513;aff'dl58N.Y. 723; 53 
 
 N. E. 1123 69 
 
 Bailey v. Kenworthy (1906), 
 
 1 B. W. C. C. 371 245 
 
 Bailey v. Kenworthy (1907), 
 
 98 L. T. 327; 1 B. W. C. C. 
 
 351 252 
 
 Bailey v. Plant (1900), 3 W. 
 
 C. C. 209 408 
 
 Baird, William Co. v. Burley 
 
 (1908), 45 Scotch L.R. 416; 
 
 1 B. W. C. C. 7 51 
 
 Baker v. Jewell (1910), 3 B. 
 
 W. C. C. 503 407 
 
 Ball v. William Hunt & Sons 
 
 (1911), 104 L. T. 327; 4 B. 
 
 W. C. C. 225 238 
 
 Baltimore & Ohio R. R. Co. 
 
 v. Baugh, 149 U. S. 368 
 
 810, 838, 842 
 Baltimore & Ohio R. R. Co. 
 
 v. Interstate Commerce 
 
 Commission, 221 U. S. 612, 
 
 618 838,843 
 
 Page 
 
 Baltimore & O. R. R. v. Mary- 
 land, 21 Wall. 456 826 
 
 Bank v. Solley, 219 U. S. 121 770 
 
 Barbier v. Connolly, 113 U. S. 
 27 613,826 
 
 Bargewell v. Daniel (1907), 
 123 L. T. J. 487;9W.C. C. 
 142 122 
 
 Barker v. Holmes (1904), 6 
 W. C. C. 52 362 
 
 Barnabas v. Bersham Col- 
 liery Co. (1910), 102 L. T. 
 R.621;3B. W.C.C.216.. 400 
 
 Barnabas v. Bersham Col- 
 liery Co. (1910), 4 B. W. 
 C. C. 119 58 
 
 Barnes v. The Nunnery Col- 
 liery Co. (1910), 4 B. W. 
 C. C. 43 93 
 
 Bartlett v. Tutton & Sons 
 (1901), 85 L. T. 531; 4 W. 
 C. C. 133 250 
 
 Bates v. Davies' Executors 
 (1909), 2B. W. C. C. 459.. 97 
 
 Bates-Smith v. General 
 Motor Cab Co. (1911), 
 A. C. 188; 4 B. W. C. C. 
 249; aff'g (1910), 3 B. W. 
 C. C. 500 116 
 
 Beadle v. Milton & Others 
 (1903), 114 L. T. 550; 5 W. 
 C. C. 55 51 
 
 Beadle & Others v. Owners of 
 S. S. "Nicholas" (1909), 
 101 L. T. 586; 3 B. W. C. 
 C. 102 454 
 
 Beale v. Fox (1909), 2 B. W. 
 C. C. 467 130 
 
 Beardsley v. N. Y., L. E., & 
 W. R. R. Co., 162 N. Y. 
 230 633 
 
 Beavin's Petition, 33N. H. 89 802 
 
 Beech v. Bradford Corpora-
 
 TABLE OF CASES REPORTED AND CITED XXXV11 
 
 Page 
 
 tion (1911), 4 B. W. C. C. 
 236 572 
 
 Belt Ry. Co. v. United States, 
 168 Fed. Rep. 542 836 
 
 Bender v. Owners of Steam- 
 ship "Zent" (1909), 100 
 L. T. 639; 2 B. W. C. C. 22 . 105 
 
 Bennett v. Scutt, 18 Barb. 
 347, 349 643 
 
 Benson v. Lancashire & York- 
 shire Rail. Co. (1904), 1 
 K.B.242;6W.C.C.20;89 
 L. T. 715 72,73,77 
 
 Bernier v. Bernier, 147 U. S. 
 242 818 
 
 Bertholf v. O'Reilly, 74 N. Y. 
 509; 30 Am. Rep. 323. .616, 
 
 720, 834 
 
 Bielingbery v. Montana 
 Union Ry. Co., 8 Mont. 
 271 622 
 
 Birmingham Cabinet Manu- 
 facturing Co. v. Dudley 
 (1910), 102 L. T. 619; 3 B. 
 W. C. C. 169 473 
 
 Birmingham Ry. Co. v. Par- 
 sons, 100 Ala. 662 622 
 
 Bist v. London & South West- 
 ern Ry. Co. (1907), 96 
 L. T. 750; 9 W. C. C. 19.. 124 
 
 Bletz v. Columbia Nat. Bank, 
 87 Pa. St. 87 800 
 
 Blovelt v. Sawyer (1904), 1 
 K. B. 271; 6 W. C. C. 16.. 89 
 
 Blyth v. Sewell (1909), 2 B. 
 W. C. C. 476 123 
 
 Blythe v. Hinckley, 173 U. S. 
 508 799 
 
 Boag v. Lockwood Collieries 
 (1909), 47 Scotch L. R. 47; 
 3B. W. C. C. 549 476 
 
 Boardman v. Scott & Whit- 
 worth (1901), 3 W. C. C. 
 
 Page 
 
 33; aff'd (1901), 85 L. T. 
 
 502; W. C. C. 1 57 
 
 Bonnett v. Vallier, 136 Wis. 
 
 193; 116 N. W. 885; 17 L. 
 
 R. A. (N. S.) 486; 128 Am. 
 
 St. Rep. 1061 694 
 
 Boon v. Quance, No. 1 (1909), 
 
 102 L. T. 443; 3 B. W. C. 
 
 C. 106 112, 113 
 
 Borgnis v. Falk, 133 N. W. 
 
 Rep. 209 (Wis.). .656, 776, 783 
 Boswell v. Gilbert (1909), 2 
 
 B. W. C. C. 251 178 
 
 Bottoms v. St. Louis & S. F. 
 
 Co., 179 Fed. Rep. 318. ... 833 
 Bowlin v. Commonwealth, 2 
 
 Bush (Ky.), 5; S. C., 92 
 
 Am. Dec. 468 802 
 
 Bowhill Coal Co. v. Malcolm 
 
 (1910), 47 Scotch L. R. 449; 
 
 3 B. W. C. C. 562 482 
 
 Bowhill Coal Co. v. Neish & 
 
 Others (1908), 46 Scotch 
 
 L. R. 250; 2 B. W. C. C. 
 
 253 321 
 
 Bowman v. Chicago, etc., Ry. 
 
 Co., 125 U. S. 465 810 
 
 Boyd v. Doharty (1908), 46 
 
 Scotch L. R. 71;2B. W. C. 
 
 C. 257 404 
 
 Bradley v. Salt Union (1906), 
 
 122 L. T. J. 302; 9 W. C. C. 
 
 31 127, 128 
 
 Bramley v. Evans & Sons 
 
 (1909), 3 B. W. C. C. 34. . . 363 
 Brandy v. Owners of S. S. 
 
 "Raphael" (1910), 4 B. W. 
 
 C. C. 6; aff'd (1911), 4 B. 
 
 W. C. C. 307 246 
 
 Branford v. North Eastern 
 
 Railway Co. (1910), 4 B. 
 
 W. C. C. 84 478 
 
 Brice v. Edward Lloyd
 
 XXXV111 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 (1909), 2 K. B.804;2B. W. 
 
 C. C. 26 89 
 
 Briggs v. Mitchell (1911), 48 
 
 Scotch L. R. 606; 4 B. W. 
 
 C. C. 400 320 
 
 Brintons, Limited, v. Turvey 
 
 (1905), A. C. 230; 7 W. C. 
 
 C. 1 64 
 
 British & South American 
 
 Steam Navigation Co. v. 
 
 Neil (1910), 3 B. W. C. C. 
 
 413 189 
 
 Broderick v. London County 
 
 Council (1908), 1 B. W. C. 
 
 C. 219 65,66 
 
 Brooker v. Warren (1907), 23 
 
 T. L. R. 201; 9 W. C. C. 26 129 
 Brown v. Houston, 114 U. S. 
 
 622 810 
 
 Brown v. Kidman (1911), 4 
 
 B. W. C. C. 199 61 
 
 Brown v. Maryland, 4 W. 
 
 C. C. 378 824 
 
 Brown v. Scott (1899), 1 W. 
 
 C. C. 11 98 
 
 Brown v. The South Eastern 
 & Chatham Railway Co.'s 
 Managing Committee 
 (1910), 3 B. W. C. C. 428.. 248 
 
 Buckley v. Brown, Fed. Gas. 
 No. 2,092 719 
 
 Buckley v. London & India 
 Docks (1909), 127 L. T. J. 
 521; 2 B. W. C. C. 327.246-247 
 
 Burgess & Co. v. Jewell 
 (1911), 4B. W. C. C. 145.. 481 
 
 Burkman v. Jamieson, 25 
 Wash. 606; 66 Pac. 48. ... 720 
 
 Burns v. Manchester & Sal- 
 ford Wesley an Mission 
 (1908), IB. W. C. C. 305.. 120 
 
 Burrell v. Avis (1898), 1 W. 
 C.'C. 129. . . 128 
 
 Page 
 Burrell v. Holloway Brothers 
 
 (1911), 4 B. W. C. C. 
 
 239 362 
 
 Burton v. Chapel Coal Com- 
 pany (1909), 46 Scotch L. 
 
 R. 375; 2 B. W. C. C. 120.. 6 
 Busby v. Richardson (1901), 
 
 3 W. C. C. 54 399 
 
 Butler v. Boston S. S. Co., 
 
 130 U. S. 548 826 
 
 Butt v. Gellyceidrim Colliery 
 
 Co. (1909), 3 B. W. C. C. 44 362 
 Butt v. Green, 29 Ohio St. 
 
 670 779 
 
 Byers v. Meridian Printing 
 
 Co., 84 Ohio St. 408 778 
 
 Byles v. Pool and another 
 
 (1909), 2 B. W. C. C. 484.. 211 
 Byrne, William, Matter of, 
 
 Deceased (1910), 44 Irish 
 
 L. T. 98; 3 B. W. C. C. 591 397 
 
 Cain v. Leyland & Co. (1907), 
 
 98 L. T. 327; 1 B. W. C. C. 
 
 351 250,252 
 
 Calder v. Bull, 3 Dallas 
 
 (U. S.), 388 801 
 
 Caldwell v. N. J. Steamboat 
 
 Co., 47 N. Y. 282 802 
 
 California v. Pacific Railroad, 
 
 127 U. S. 1 814 
 
 Calkins v. Barger, 44 Barb. 
 
 424 643 
 
 Cambrook v. George (1903), 
 
 5 W. C. C. 26 97 
 
 Camfield v. United States, 
 
 167 U. S. 518; 17 Sup. Ct. 
 
 864; 42 L.Ed. 260. 648, 729, 771 
 Cammell, Laird & Co. v. 
 
 Platt (1908), 2 B. W. C. C. 
 
 368 276 
 
 Canavan v. Owners of the
 
 TABLE OF CASES REPORTED AND CITED XXXIX 
 
 Steam ship " Universal ' ' 
 (1910), 3B. W. C. C. 355.. 84 
 
 Cardiff Corporation v. Hall 
 (1911), 104 L. T. 467; 4 B. 
 W. C. C. 159 476 
 
 Carolan v. Harrington & Sons 
 (1911), 2 K. B.733;4B. W. 
 C. C. 253 385 
 
 Carpenter v. Snelling, 97 
 Mass. 452 802 
 
 Carroll v. Gray & Sons (1910), 
 47 Scotch L. R. 646; 3 B. 
 W. C. C. 572 474 
 
 Carswell v. Sharpe & Others 
 (1910), 47 Scotch L. R. 
 335; 3 B. W. C. C. 552.... 115 
 
 Case v. Colonial Wharves 
 (1905), 8 W. C. C. 114.... 250 
 
 Caton v. Summerlee & Mos- 
 send Iron Co. (1902), 39 
 Scotch L. R. 762 80 
 
 Cawdor & Garnant Collieries 
 v. Jones (1909), 3 B. W. C. 
 C. 59 470 
 
 Challis v. London & South 
 Western Ry. Co. (1905), 7 
 W. C. C. 23 102 
 
 Chandler v. Smith & Son 
 (1899), 1 W. C. C. 19 277 
 
 Chapman v.Atlantic & St. Law- 
 rence R. R. Co., 37 Me. 92. . 720 
 
 Charing Cross, Euston & 
 Hampstead Ry. Co. v. 
 Boots (1909), 101 L. T. 53; 
 2 B. W. C. C. 385 471 
 
 Charles v. Walker (1909), 25 
 T. L. R. 609; 2 B. W. C. C. 5 403 
 
 Charlotte, Columbia & Au- 
 gusta R. R. Co. v. Gibbes, 
 142 U. S. 386; 12 Sup. Ct. 
 255; 35 L. Ed. 1051 730 
 
 Charlotte Nat. Bank v. Mor- 
 gan, 132 U. S. 141 799 
 
 Page 
 
 Cheek v. Harmsworth Bros. 
 (1901), 4 W. C. C. 3 69 
 
 Chesapeake & O. R. R. Co. v. 
 Am. Ex. Bank, 92 Virginia, 
 154 798 
 
 Chicago v. Stearns, 105 111. 554 819 
 
 Chicago, etc., Ry. Co. v. Ross, 
 112 U. S. 377 804 
 
 Chicago, etc., R. R. v. Solan, 
 169 U.S. 133 826 
 
 Chicago, Burlington & Quin- 
 cy Railroad Co. v. Mc- 
 Guire, 219 U. S. 549 843 
 
 Chicago, etc., R. Co. v. Whit- 
 ton, 13 Wall. 288 800 
 
 Chicago June. Ry. Co. v. 
 King, 169 Fed. Rep. 372. . 836 
 
 Chicago, K. & W. R. R. Co. 
 v. Pontius, 157 U. S. 209 
 
 613, 810, 820, 823, 829, 833 
 
 Chicago, Rock Island & Pa- 
 cific Railway Co. v. Zer- 
 necke, 183 U. S. 582. .637, 
 
 649, 722, 834 
 
 Chiles v. Chesapeake & Ohio 
 Ry. Co., 218 U. S. 71 805 
 
 Chisholm v. Walker & Co. 
 (1908), 46 Scotch L. R. 24; 
 2B. W. C. C. 261 118 
 
 Chitty v. Nelson (1908), 2 B. 
 W. C. C. 496 103 
 
 Christian v. Macon Ry. & 
 Light Co., 120 Ga. 314 820 
 
 Claflin v. Houseman, 93 
 U. S. 130, 136, 137.. 797, 
 
 799, 800, 822, 849 
 
 Clark v. Foot, 8 Johns. 421 . . 643 
 
 Clark v. Gas Light & Coke 
 Co. (1905), 7 W. C. C. 119 281 
 
 Clark v. Nash, 198 U. S. 361; 
 25 Sup. Ct. 676; 49 L. Ed. 
 1085 725 
 
 Clatworthy v. R. & H. Green
 
 xl 
 
 TABLE OF CASES REPORTED AND CITED 
 
 (1902), 86 L. T. 702; 4 W. 
 
 C. C. 152 324 
 
 Clayton & Shuttleworth v. 
 
 Dobbs(1908),2B.W.C.C. 
 
 488 276 
 
 Cleverley & Others v. Gas 
 
 Light & Coke Co. (1907), 1 
 
 B. W. C. C. 82 211 
 
 Clifford v. Joy (1909), 43 Irish 
 
 L. T. 193;2B.W. C.C. 32 96 
 Clinton Bridge, The, 10 Wall. 
 
 454 . 814 
 
 Clover, Clayton & Co. v. 
 
 Hughes (1910), A. C. 242; 
 
 3 B. W. C. C. 275; aff'g, 2 
 
 K. B. 798; 2 B. W. C. C. 15 59 
 Clyatt v. United States, 197 
 
 U. S. 207 640 
 
 Coal Co. v. Illinois, 185 U. S. 
 
 203 783 
 
 Coe v. Errol, 116 U. S. 517. . 825 
 Coe v. Fife Coal Co. (1909), 
 
 46 Scotch L. R. 325; 2 B. 
 
 W. C. C. 8 60 
 
 Colasurdo v. Central R. R. of 
 
 N. J., 180 Fed. Rep. 832. . 832 
 Cole v. Evans, Son, Lescher 
 
 & Webb (1911), 4 B. W. 
 
 C.C. 138 51,52, 100 
 
 Cole v. Hall, 103 111. 30 749 
 
 Coley v. Railroad Co., 128 
 
 Nor. Car. 534; S. C., 129 
 
 Nor. Car. 407 820 
 
 Collector v. Day, 11 Wall. 
 
 113, 126 801,802 
 
 Colon v. Lisk, 153 N. Y. 188 
 
 626, 632 
 Commonwealth v. Alger, 7 
 
 Cush. 85 625 
 
 Conway and another v. 
 
 Pumpherston Oil Co. 
 
 (1911), 48 Scotch L. R. 
 
 632; 4 B. W. C. C. 392. . .93, 94 
 
 Page 
 Cook v. Whipple, 55 N. Y. 
 
 164 797,799 
 
 Cooley v. Board of Wardens, 
 
 12 How. 299, 315, 317, 
 
 800, 810, 814, 838 
 Cooper Mfg. Co. v. Ferguson, 
 
 113 U. S. 727 825 
 
 Cornish v. Lynch (1910), 3 
 
 B. W. C. C. 343 552 
 
 Cory Brothers & Co. v. 
 
 Hughes (1911), 2 K. B. 
 
 738; 4 B. W. C. C. 291 .... 480 
 Cottrell v. Union Pacific Ry. 
 
 Co., 2 Wyo. 540 622 
 
 Craig v. Insurance Co., 141 
 
 U. S. 638 826 
 
 Crandall v. Nevada, 6 Wall. 
 
 35 824 
 
 Cranfield v. Ansell (1910), 4 
 
 B. W. C. C. 57 472 
 
 Craske v. Wigan (1909), 100 
 
 L. T. 8; 2 B. W. C. C. 35 
 
 102, 107 
 Cremins v. Guest, Keen & 
 
 Nettlefold (1908), 1 K. B. 
 
 469; 1 B. W. C. C. 160... 80, 81 
 Cronin v. Silver (1911), 4 B. 
 
 W. C. C. 221 95 
 
 Crossfield & Sons v. Tanian, 
 
 82 L. T. 813; 2 W. C. C. 141 469 
 Crutcher v. Kentucky, 141 
 
 U. S. 47 810 
 
 Cunningham v. M'Naughton 
 
 & Sinclair (1910), 47 Scotch 
 
 L. R. 781; 3 B. W. C. C. 
 
 577 473 
 
 D 
 
 Dallemagne v. Moisan, 197 
 U. S. 174 800 
 
 Danby Bank, Receiver of, v. 
 State Treasurer, 39 Vt. 92 
 
 725, 730
 
 TABLE OF CASES REPORTED AND CITED 
 
 xli 
 
 Page 
 Daniel Ball, The, 10 Wall. 
 
 557 810,815,826,833,835 
 
 Darbon v. Gigg (1904), 7 W. 
 
 C. C. 32 127 
 
 Darlington v. Roscoe & Sons 
 
 (1906), 8 W. C. C. 4 212 
 
 Darlington v. Roscoe & Sons 
 
 (1910), 96 L. T. 179; 9 W. 
 
 C. C. 1 322 
 
 Darnley v. Canadian Pacific 
 
 Ry. Co., 14 B. C. R. 15; 2 
 
 B. W. C. C. 505 128 
 
 Darnley v. Canadian Pacific 
 
 Railway Co. (1909), 15 B. 
 
 C. R. 324; 4 B. W. C. C. 449 551 
 David v. Windsor Steam Coal 
 
 Co. (1911), 4 B. W. C. C. 
 177 481 
 
 Davidson v. Champion, 7 
 Conn. 224 801 
 
 Davidson v. New Orleans, 96 
 U. S. 97; 24 L. Ed. 616. ... 737 
 
 Davies v. Point of Ayr Col- 
 lieries (1909), 2 B. W. C. C. 
 157 363 
 
 Davies v. Rhymney Iron Co., 
 2 W. C. C. 22 81 
 
 Day v. Markham (1904), 6 
 W. C. C. 115 320 
 
 Dean v. London & North 
 Western Railway Co., 
 (1910), 3 B. W. C. C. 351 . . 66 
 
 Debs, In re, 158 U. S. 564 
 
 811, 815, 816, 833 
 
 Defiance Water Co. v. De- 
 fiance, 191 U.S. 184 799 
 
 Delaware, The, 161 U. S. 459 805 
 
 Delfel v. Hanson, 2 Wash. 
 194; 26 Pac. 220 720 
 
 Dennick v. R. R. Co., 103 
 U. S. 18 798 
 
 Dent v. West Virginia, 129 
 U. S. 114 . . 828 
 
 Page 
 
 Devitt & Crosby Magee v. 
 The Owners of the S. S. 
 "Bainbridge" (1909), 2 
 K. B. 802; 2 B. W. C. C. 
 383 384 
 
 Devons v. Alexander Ander- 
 son & Sons (1910), 48 
 Scotch L. R. 187; 4 B. W. 
 C. C. 354 360 
 
 Dewberry v. Southern Ry. 
 Co., 175 Fed. Rep. 307 833 
 
 Dewhurst v. Mather (1908), 
 IB. W. C. C. 328 122 
 
 Dewhurst v. Mather (1908), 
 2 K. B. 754 173 
 
 Dickinson v. Barmak (1908), 
 124 L. T. Newspaper, 403 105 
 
 Disourdi v. Sullivan Group 
 Mining Co. and another 
 (1910), 15 B. C. R. 305; 4 
 B. W. C. C. 462 560 
 
 Disourdi v. Sullivan Group 
 Mining Co. & Maryland 
 Casualty Co. (No. 2), 14 
 B. C. R. 256; 2 B. W. C. C. 
 508 561 
 
 Disourdi v. Sullivan Group 
 Mining Co. & Maryland 
 Casualty Co. (No. 3), 14 
 B. C. R. 273; 2 B. W. C. C. 
 514 561 
 
 Dobby v. Wilson, Pease & Co. 
 (1909), 2 B. W. C. C. 370 482 
 
 Doggett v. Waterloo Taxi- 
 Cab Co. (1910), 102 L. T. 
 874; 3 B. W. C. C. 371.... 116 
 
 Donaldson Brothers v. Cowan 
 (1909), 46 Scotch L. R. 
 920; 2 B. W. C. C. 390.... 471 
 
 Donnachie v. United Col- 
 lieries (1910), 47 Scotch 
 L. R. 412 126, 131 
 
 Donnelly v. William Baird &
 
 xlii 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 Co. (1908), 45 Scotch L. R. 
 
 394; 1 B. W. C. C. 95 . . . . 475 
 Dothie v. MacAndrew & Co. 
 
 (1908), 98 L. T. 495; 1 B. 
 
 W. C. C. 308 247 
 
 Dotzauer v. Strang Palace 
 
 Hotel (1910), 3 B. W. C. C. 
 
 387 69 
 
 Douglas v. United Mineral 
 
 Mining Co. (1900), 2 W. 
 
 C. C. 15 127 
 
 Dozier v. Alabama, 218 U. S. 
 
 124 804 
 
 Dozier v. Fidelity & Casual- 
 ty Co., 46 Fed. 446; 13 L. 
 
 R. A. 114 54 
 
 Dudley v. Mayhew, 3 N. Y. 9 801 
 Duncan v. Missouri, 152 U. S. 
 
 377 624 
 
 Dunham v. Clare (1902), 66 
 
 L.T. 751; 4 W.C.C. 102.. 207 
 Dunnigan v. Cavan & Lind 
 
 (1911), 48 Scotch L. R. 459; 
 
 4B. W.C.C. 386 406 
 
 Durkee v. Janesville, 28 Wis. 
 
 464; 9 Am. Rep. 500 694 
 
 Earnshaw v. Lancashire & 
 Yorkshire Ry. Co. (1903), 
 5 W. C. C. 28 90 
 
 East Kingston v. Towle, 48 
 N. H. 57 614 
 
 Eaves v. Blaenclydach Col- 
 liery Co. (1909), 2 K. B. 73; 
 2 B. W. C. C. 329 241 
 
 Edwards v. The Alyn Steel 
 Tinplate Co. (1910), 3 B. 
 W. C. C. 141 278 
 
 Edwards v. International 
 Coal Co. (1899), 5 W. C. C. 
 21 97 
 
 Eke v. Sir William Hart-Dyke 
 
 Page 
 
 (1910), 2 K. B. 677; 3 B. 
 
 W.C.C. 482 66,67 
 
 Elgin J. & E. Ry. Co. v. 
 
 United States, 168 Fed. 
 
 Rep. 1 811 
 
 Elliott v. Rex (1904), 6 W. C. 
 
 C. 27 90 
 
 Ellis v. Ellis & Co. (1905), 92 
 
 L. T. 718; 7 W. C. C. 97. ..119 
 Ellis v. Knott (1900), 2 W. C. 
 
 C. 116 484 
 
 Ellis v. Lochgelly Iron & Coal 
 
 Co., (1909), 46 Scotch L. R. 
 
 960; 2 B. W. C. C. 136.. 573 
 El Paso, etc., Ry. Co. v. 
 
 Gutierrez, 215 U. S. 87 
 
 798, 799, 803, 809, 810, 821, 823 
 Emerson v. Gardiner, 8 Kan. 
 
 452 720 
 
 Emmerson v. Donkin & Co. 
 
 (1910), 4B. W. C. C. 74.. 472 
 Employer's Liability Cases, 
 
 207 U. S. 463.. 796, 809, 
 
 812, 814, 827, 832, 838, 842 
 Engel v. O'Malley, 219 U. S. 
 
 128 643,644 
 
 Erie R. R. Co. v. Erie Transp. 
 
 Co., 204 U. S. 220 819 
 
 Evans v. Cook, Lancashire & 
 
 Yorkshire Accident Ins. 
 
 Co., Third Parties (1904), 
 
 7 W. C. C. 41 350 
 
 Evans v. Penwyllt Dinas 
 
 Silica Brick Co. (1901), 4 
 
 W. C. C. 101 118 
 
 Evans v. Vickers, Sons & 
 
 Maxim (1910), 102 L. T. 
 
 199; 3 B. W. C. C. 126; 
 
 aff'd (1910), 3 B. W. C. C. 
 
 403 483 
 
 Exempt Fireman's Fund v. 
 
 Roome, 29 Hun (N. Y.),391 721 
 Eyre v. Houghton Main Col-
 
 TABLE OF CASES REPORTED AND CITED 
 
 xliii 
 
 Page 
 
 liery Co. (1910), 102 L. T. 
 R.385;3B. W.C. C.250.. 477 
 
 Fairchild v. Rich, 68 Vt. 202 614 
 Faircloth v. Waring & Gillow 
 
 (1906), 8 W. C. C. 99 250 
 
 Farmer v. Stafford, Allen & 
 
 Sons (1911), 4 B. W. C. C. 
 
 223 56 
 
 Farwell v. Boston & Wor- 
 cester R. R. Co., 4 Met. 48 804 
 Felt v. Denver, etc., R. Co., 
 
 110 Pac. Rep. 215 836 
 
 Fennah v. Midland & Great 
 
 Western Railway of Ireland 
 
 (1911), 45 Irish L. T. 192; 
 
 4 B. W. C. C. 440 104 
 
 Fenton v. Thorley & Co., 19 
 
 T. L. R. 684 49 
 
 Fenton v. Thorley & Co. 
 
 (1903), A. C. 443; 5 W. C. 
 
 C. 1 48,53,55 
 
 Fife Coal Co. v. Wallace 
 
 (1909), 46 Scotch L. R. 727; 
 
 2B. W. C. C. 264 321 
 
 Filer v. Stowell Co., In re, 
 
 132 N. W. 584 662 
 
 Fire Department v. Helfen- 
 
 stein, 16 Wis. 136 722 
 
 Fire Department v. Noble, 3 
 
 E. D. Smith (N. Y.), 440. . 721 
 Fire Department v. Wright, 3 
 
 E. D. Smith (N. Y.), 453. . 721 
 Firemen's Benevolent Assn. 
 
 v. Lounsbury, 21 111. 511; 
 
 74 Am. Dec. 115 721, 744 
 
 Fitzgerald v. Clarke & Son 
 
 (1908), 99 L.T. 101; 2KB. 
 
 796; 1 B. W. C. C. 197.72, 100 
 Fitzpatrick v. Hindley Field 
 
 Colliery Co. (1901), 3 W. 
 
 C. C. 37; 4 W. C. C. 7.... 77 
 
 Page 
 Fleetwood v. Read, 21 Wash. 
 
 547; 58 Pac. 665; 47 L. R. 
 
 A. 205 750,753 
 
 Fletcher v. Owners of Steam- 
 ship "Duchess," 4 B. W. 
 
 C. C. 317 88 
 
 Foley v. Railroad, 64 Iowa, 644 831 
 Follis v. Schaake Machine 
 
 Works (1908), 13 B.C. 471; 
 
 IB. W.C. C. 442 315 
 
 Ford v. Wren & Dunham 
 
 (1903), 5 W. C. C. 48 7 
 
 Forster v. Pierson (1906), 8 
 
 W. C. C. 19 132 
 
 Foster v. Morse, 132 Mass. 
 
 354 653 
 
 Fox v. M. F. A. Assn., 96 
 
 Wis. 390; 71 N. W. 363. .. 679 
 France v. State, 57 Ohio St. 1 780 
 Freeman v. Mercantile Mut. 
 
 Ace. Assn., 156 Mass. 351 65 
 French v. Barber Asphalt Co., 
 
 181 U. S. 324 828 
 
 Fretwell v. City of Troy, 18 
 
 Kan. 274 752 
 
 Frisbie v. United States, 157 
 
 U. S. 160; 15 Sup. Ct. 586; 
 
 39 L. Ed. 657 736 
 
 Fulford v. Northfleet Coal & 
 
 Ballast Co. (1907), 1 B. 
 
 W. C. C. 222 56 
 
 Fulgham v. Midland Valley 
 
 R. Co., 167 Fed. Rep. 660 832 
 Furniss v. Gartside & Co. 
 
 (1910), 3 B. W. C. C. 411 
 
 52, 96, 100 
 
 Furniss, Withy & Co. v. Ben- 
 nett (1910), 3 B. W. C. C. 
 
 195.. . 406 
 
 Galena v. Jacobs, 20 111. 478 819 
 Gane v. Norton Hill Colliery
 
 xliv 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 Co. (1909), 100 L. T. 979; 2 
 B. W. C. C. 42 78,452 
 
 Garfinkle, In re, 37 Wash. 
 650; 80 Pac. 188 750 
 
 Garnett et al., In re, 141 U. S. 
 1 826 
 
 Gentsch v. State, 71 Ohio St. 
 151 783 
 
 George v. Glasgow Coal Com- 
 pany (1908), 99 L. T. 782; 2 
 
 B. W. C. C. 125 128 
 
 George v. Glasgow Coal Co., 
 
 45 Scotch L. R. 687; 1 B. 
 
 W. C. C. 239 131 
 
 German Alliance Ins. Co. v. 
 
 Hale, 219 U. S. 307 803 
 
 Gibbons v. Ogden, 9 Wheat. 
 
 1, 196 809,816,824 
 
 Gibson v. Dunkerley Brothers 
 
 (1910), 3B. W. C. C.345.. 101 
 Gilbert v. Owners of the 
 
 Nizam (1910), 3 B. W. C. 
 
 C. 455 86 
 
 Gilbey v. The Great Western 
 
 Railway Co. (1910), 102 
 
 L. T. 202; 3 B. W. C. C. 135 404 
 
 Gillivray v. Northern Coun- 
 ties Institute for the Blind 
 (1911), 48 Scotch L.R. 811; 
 4B. W. C. C. 429 121 
 
 Oilman v. Philadelphia, 3 
 Wall. 713 810,811 
 
 Gilmour v. Dorman, Long & 
 Co. (1911), 105 L. T. 54; 4 
 B. W. C. C. 279 73,75 
 
 Gilroy v. Mackie & Others 
 (Leith Distress Committee) 
 (1909), 46 Scotch L. R. 325; 
 2B. W. C. C. 269 120 
 
 Giozza v. Tiernan, 148 U. S. 
 657 828 
 
 Gladson v. Minnesota, 166 
 U. S. 427 . . 825 
 
 Page 
 
 Gloucester Ferry Co. v. Penn- 
 sylvania, 114 U. S. 196 807, 846 
 
 Goodall & Clarke v. Kramer 
 (1910), 3B. W. C. C.315.. 474 
 
 Gough v. Crawshay Brothers 
 (1907), 98 L. T. 327; 1 B. 
 W. C. C. 351 252 
 
 Gough v. Crawshay Brothers, 
 1 B. W. C. C. 374 210 
 
 Gourlay v. Murray (1909), 45 
 Scotch L. R. 577; 1 B. W. 
 C. C. 335 208 
 
 Grand Trunk Ry. Co. v. Rich- 
 ardson, 9 U. S. 454 642 
 
 Granick v. 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. 
 511 129,454 
 
 Grant & Aldcroft v. Conroy 
 (1904), 6 W. C. C. 153.... 294 
 
 Grant v. Glasgow & South 
 Western Railway Co. 
 (1907), 45 Scotch L. R. 
 128; IB. W. C. C. 17 103 
 
 Great Northern Ry. Co. v. 
 Dawson (1905), 92 L. T. 
 145; 7 W. C. C. 114 247 
 
 Greaves v. Mulliners (1901), 
 3 W. C. C. 189 250 
 
 Greenhill v. The Daily Rec- 
 ord, Glasgow (1909), 46 
 Scotch L. R. 483; 2 B. W. 
 
 C. C. 244 Ill 
 
 Groves v. Burroughes & 
 
 Watts (1911), 4 B. W. C. C. 
 
 185 68 
 
 Griffith v. Connecticut, 218 
 
 U. S. 572 803 
 
 Griga v. Owners of Ship 
 
 "Harelda" (1910), 26 T. L. 
 
 R.272;3B. W. C.C. 116.. 407
 
 TABLE OF CASES REPORTED AND CITED 
 
 xlv 
 
 Page 
 Grissell v. Housatonic R. R. 
 
 Co., 54 Conn. 447 641 
 
 Guest, Keen & Nettlefolds v. 
 
 Winsper (1911), 4 B. W. C. 
 
 C. 289 480 
 
 Gulf, Colorado, etc., R. R. v. 
 
 Ellis, 165 U. S. 150. .. .828, 829 
 Gulf, etc., R. R. Co. v. Hef- 
 
 ley, 158 U. S. 98 797, 846 
 
 Gundling v. Chicago, 177 
 
 U. S. 183; 20 Sup. Ct. 633; 
 
 44 L. Ed. 725 730 
 
 H 
 
 Hall v. De Cuir, 95 U. S. 485 
 
 805, 824 
 
 Hall v. Furness, Withy & Co. 
 (1909), 3 B. W. C. C. 72.. 398 
 
 Hall v. Tamworth Colliery 
 Co. (1910), 4 B. W. C. C. 
 107 318 
 
 Hall v. West & Slade Mill 
 Co., 39 Wash. 447; 81 Pac. 
 915 734 
 
 Hallinger v. Davis, 146 U. S. 
 314 624 
 
 Hamilton Co. v. Massachu- 
 setts, 6 Wall. 638; 18 L. Ed. 
 904 751 
 
 Hancock v. British Westing- 
 house Electric Co. (1910), 
 2 B. W. C. C. 210 361 
 
 Hanover Nat. Bank v. Moy- 
 ses, 186 U. S. 181 799 
 
 Hapelman v. Poole (1908), 25 
 T. L. R. 155; 2 B. W. C. C. 
 48 67,99 
 
 Harding v. Brynddu Colliery 
 Co. (1911), 2 K. B. 747; 4 
 B. W. C. C. 269 94 
 
 Harland & Wolff v. Radcliffe 
 (1909), 43 Irish L. T. 166; 2 
 B. W. C. C. 374 .. . 407 
 
 Page 
 Harrison v. Whitaker Bros., 
 
 2 W. C. C. 12 98 
 
 Hartford F. Ins. Co. v. Chi., 
 
 Mil. & St. Paul Ry. Co., 62 
 
 Fed. Rep. 904 642 
 
 Hartford Ins. Co. v. C., M. & 
 
 St. P. Ry. Co., 70 Fed. Rep. 
 
 201;17C.C.A.62;30L.R. 
 
 A. 193; S. C., 175 U. S. 91; 
 
 20 Sup. Ct. 33; 44 L. Ed. 84 667 
 Hartley v. United States, 3 
 
 Hayw. (Tenn.) 45 800 
 
 Hathaway v. Argus Printing 
 
 Co. (1900), 3 W. C. C. 177 248 
 Hawkes v. Richard Coles & 
 
 Sons (1910), 3 B. W. C. C. 
 
 163 ' 573 
 
 Hawkins v. Powell's Tillery 
 
 Steam Coal Co. (1911), 104 
 
 L. T. 365; 4 B. W. C. C. 178 106 
 Hayes v. Missouri, 120 U. S. 
 
 68 624 
 
 Haylett v. Vigor & Co. (1908), 
 
 IB. W. C. C. 282 68 
 
 Hazel Kirke, The, 25 Fed. 
 
 Rep. 601, 607 833 
 
 Hendricksen v. Owners of 
 
 Steamship ' ' Swanhilda, ' ' 
 
 (1911), 4B. W. C. C. 233.. 235 
 Hendry v. United Collieries 
 
 (1908), 45 Scotch L. R. 
 
 944; 1 B. W. C. C. 289.... 323 
 Hendry v. The United Col- 
 lieries (1910), 47 Scotch 
 
 L. R. 635; 3 B. W. C. C. 
 
 567 79 
 
 Hennington v. Georgia, 163 
 
 U. S. 299 825 
 
 Hensey v. White (1900), 1 
 
 Q. B. 481; 2 W. C. C. 1. .55,57 
 Hewlett v. Hepburn, 2 W. C. 
 
 C. 123 243 
 
 Hewitt & Others v. Owners
 
 xlvi 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 of the Ship "Dutchess" 
 (1910), 192 L. T. 204; 3 B. 
 W. C. C. 239 86 
 
 Hicks v. Maxton (1907), 1 B. 
 W. C. C. 150 45 
 
 Higgins v. Campbell & Har- 
 rison & Turvey v. Brintons 
 Limited (1904), 1 K. B. 
 328; 6 W. C. C. 1; aff'd 
 (1905), A. C. 230; 7 W. C. 
 C. 1 68 
 
 Higgins v. Railroad Co., 155 
 Mass. 176 798 
 
 Hill v. Begg (1908), 1 B. W. 
 C. C. 320 121 
 
 Hill v. Begg (1908), 2 K. B. 
 802 174 
 
 Hill v. Granby Consolidated 
 Mines (1906), 12 B. C. 118; 
 1 B. W. C. C.436 125 
 
 Hill v. Ocean Coal Co, (1909), 
 3B. W. C. C. 29 239 
 
 Hindman v. Boyd, 42 Wash. 
 . 17; 84 Pac. 609 705 
 
 Hoddinott v. Newton Cham- 
 bers & Co. (1900), 3 W. C. 
 C. 74. . 72 
 
 Hodgson v. Owners of West 
 Stanley Colliery (1910), 
 102 L. T. 194; A. C. (H. L.) 
 229; 3 B. W. C. C. 260 
 
 315, 317, 324 
 
 Hoke v. Henderson, 4 Dev. 
 15 618 
 
 Holden v. Hardy, 169 U. S. 
 366; 18 Sup. Ct. 383; 42 L. 
 Ed. 780 .623, 627, 727, 737, 757 
 
 Holmes v. Great Northern 
 Ry. Co., 2 W. C. C. 19.... 81 
 
 Holness v. G. N. Rail. Co. 
 (1900), 2 Q. B. 409; 2 W. 
 C. C. 19 80 
 
 Holness v. Mackay & Davis 
 
 Page 
 
 (1899), 80 L. T. 831; 1 W. 
 C. C. 13 74,75 
 
 Hoist v. Roe, 39 Ohio St. 340; 
 48 Am. Rep. 459 749 
 
 Holt v. Cummings, 102 Pa. 
 212; 48 Am. Rep. 199 719 
 
 Holt v. Yates & Thorn (1909), 
 3B. W. C. C. 75 482 
 
 Honor v. Painter (1911), 4 B. 
 W. C. C. 188 61 
 
 Hood, H. P., & Sons v. Mary- 
 land Cas. Co., 206 Mass. 
 223; 92 N. E. Rep. 329.... 64 
 
 Hooksett v. Concord R. R. 
 Co., 38 N. H. 242 720 
 
 Hooper v. California, 155 
 U.S. 648 807,825,826 
 
 Hopkins v. United States, 171 
 U. S. 592 824 
 
 Hopwood v. Olive & Parting- 
 ton (1910), 3 B. W. C. C. 
 357 132 
 
 Horsman v. Glasgow Naviga- 
 tion Co. (1909), 3 B. W. C. 
 C. 27 574 
 
 Hosegood, B., & Sons v. Wil- 
 son (1910), 4 B. W. C. C. 30 486 
 
 Hoskins v. J. Lancaster 
 (1910), 3B. W. C. C. 476. 76 
 
 Houghton v. Sutton Heath & 
 Lea Green Colliers Co. 
 (1900), 3 W. C. C. 173.... 248 
 
 Houston v. Moore, 5 Wheat. 
 1, 48 800, 826 
 
 Howard v. Illinois Central 
 R. R. Co., 207 U. S. 463. . 803 
 
 Howell v. Bradford & Co. 
 (1911), 104 L. T. 433; 4 B. 
 W. C. C. 203 323 
 
 Ho wells v. Vivian & Sons 
 (1901), 85 L. T. 529; 4 W. 
 C. C. 106 315 
 
 Howlan v. N. Y. & N. J. Tele-
 
 TABLE OF CASES REPORTED AND CITED 
 
 xlvii 
 
 Page 
 
 phone Co., 131 App. Div. 
 (N. Y.), 443;115Supp. 316 
 
 45,47 
 
 Hoxie v. N. Y., N. H. & H. R. 
 Co., 82 Conn. 352. .789, 
 
 800, 827, 830, 833 
 
 Hoxie v. N. Y., N. H. & H. 
 R. R. Co., 73 Atl. Rep. 754 821 
 
 Huckle v. The London Coun- 
 ty Council (1910), 3 B. W. 
 C. C. 536 7 
 
 Huckle v. The London Coun- 
 ty Council (1910), 4 B. W. 
 C. C. 113 571 
 
 Hudson County Water Co. v. 
 McCarter, 209 U. S. 349; 28 
 Sup. Ct. 529; 52 L. Ed. 828 731 
 
 Hughes v. Coed Talon Col- 
 liery Co., 100 L. T. 555; 2 
 B.W. C. C. 159 361 
 
 Hughes v. Postlethwaite 
 (1910), 4 B.W. C.C. 105.. 113 
 
 Hugo v. H. W. Larkins & Co. 
 (1910), 3 B. W. C. C.228.. 70 
 
 Humphreys v. City of London 
 Electric Lighting Co. 
 (1911), 4 B.W. C.C. 275.. 277 
 
 Huntington v. Attrill, 146 
 U. S. 657 798 
 
 Hurtado v. California, 110 
 U. S. 516; 4 Sup. Ct. Ill, 
 292; 28 L. Ed. 232. .624, 
 
 728, 828, 834 
 
 Huus v. N. Y. & Porto Rico 
 S. S. Co., 182 U. S. 392... 815 
 
 Hyndman v. Craig & Co. 
 (1910), 44 Irish L. T. 11; 4 
 B. W. C. C. 438. . 88 
 
 Ibrahim Said v. J. H. Wels- 
 ford & Co. (1910), 3 B. W. 
 C. C. 233. . . 399 
 
 Illinois Cent. R. R. v. Illinois, 
 163 U.S. 142 825 
 
 Indianapolis & G. R. R. v. 
 Foreman, 162 Ind. 85 831 
 
 Ingersoll v. Stockbridge & 
 Pittsfield R. R. Co., 8 Al- 
 len, 438 642 
 
 Int. Com. Comm. v. 111. Cent. 
 R. R. Co., 215 U. S. 452. . 815 
 
 Irons v. Davis & Timmins 
 (1899), 80 L. T. 673; 1 W. 
 C. C. 26 275 
 
 Ismay-Imrie & Co. v. Wil- 
 liamson (1908), 42 Irish 
 L. T. 213; 1 B. W. C. C. 232 52 
 
 Ives v. South Buffalo Ry. Co., 
 201 N. Y. 271; rev'g 140 
 App. Div. 921.. 2, 5, 39, 40, 
 
 157, 592, 653, 667, 760, 774 
 
 Jackson v. General Steam 
 
 Fishing Co. (1909), A. C. 
 
 523; 101 L. T. 401 ; 2 B. W. 
 
 C.C. 56 73,84 
 
 Jacobs, Matter of, 98 N. Y. 
 
 98 616,632 
 
 James v. Ocean Coal Co. 
 
 (1904), 6 W. C. C. 128.... 251 
 Jamieson v. Clark (1908), 46 
 
 Scotch L. R. 73; 2 B. W. 
 
 C. C. 228 114 
 
 Jemming v. Railroad, 96 
 
 Minnesota, 302 831 
 
 Jenkinson v. Harrison Ains- 
 
 lie&Co. (1911), 4B. W. C. 
 
 C. 194 93 
 
 Jensen v. South Dakota Cent. 
 
 R. R. Co., 25 S. D. 506; 127 
 
 N. W. 650 .- 720,743 
 
 Jensen v. Union Pacific Ry. 
 
 Co., 6 Utah, 253 622
 
 Xlviii TABLE OF CASES REPORTED AND CITED 
 
 Page 
 Jesson v. Bath (1902), 4 W. 
 
 C. C. 9 82 
 
 Jobson v. W. Cory & Sons 
 
 (1911), 4 B. W. C. C.284.. 323 
 John v. Albion Coal Co. 
 
 (1901), 4 W. C. C. 15 127 
 
 Johnson v. Adshead, 2 W. C. 
 
 C. 158 407 
 
 Johnson v. Great Northern 
 
 Ry. Co., 178 Fed. Rep. 643, 
 
 646 836 
 
 Johnson v. Marshall, Sons & 
 
 Co. (1906), 94 L. T. 828; 
 
 8 W. C. C. 10.. 125, 126, 
 
 128, 130, 403 
 Johnson v. Monasterevan 
 
 General Store Co. (1908), 
 
 42 Irish L. T. 268; 2 B. W. 
 
 C. C. 183 123 
 
 Johnson v. Phoenix Bridge 
 
 Co., 133 App. Div. 807; 118 
 
 Supp. 88 45 
 
 Johnson v. Ry. Co., 43 Minn. 
 
 222 830,831 
 
 Johnson v. So. Pacific Co., 
 
 196 U.S. 1..805, 810, 811, 
 
 815, 821, 834, 835, 838 
 Johnson v. Wootton (1911), 
 
 4B. W. C. C. 258 359 
 
 Johnson & Others v. Owners 
 
 of Ship "Torrington" 
 
 (1909), 3B. W. C. C. 68.. 53 
 Jones v. London & South 
 
 Western Ry. Co. (1901), 3 
 
 W. C. C. 46 128 
 
 Jones v. Ocean Coal Co. 
 '(1899), 80 L. T. 582; 1 W. 
 
 C. C. 94 243 
 
 Jones v. Owners of the Ship 
 
 "Alice and Eliza" (1910), 3 
 
 B. W. C. C. 495 / 112 
 
 Jones v. Walker (1899), 1 W. 
 
 C. C. 142 .249 
 
 Page 
 
 Julien v. Model B. L. & I. 
 Assn., 116 Wise. 79; 92 
 N. W. 561; 61 L. R. A. 668 667 
 
 K 
 
 Kane v. Merry & Cunning- 
 
 hame (1911), 48 Scotch L. 
 
 R.430;4B.W.C.C.379.. 91 
 Kansas City, etc. v. Flippo, 
 
 138 Ala. 487 800 
 
 Kansas, etc., R. R. Co. v. 
 
 Smith, 6 Heisk, 174 819 
 
 Karemaker v. Owners of S. S. 
 
 "Corsican,"(1911)4B. W. 
 
 C. C. 295 54 
 
 Kearon v. Kearon (1911), 42 
 
 Irish L. T. 96; 4 B. W. C. 
 
 C. 435 82 
 
 Keast v. The Barrow Haem- 
 atite Steel Co. (1899), 1 W. 
 
 C. C. 99 242 
 
 Keeling v. New Monckton 
 
 Collieries (1910), 4 B. W. 
 
 C. C. 49 319 
 
 Keller v. United States, 213 
 
 U. S. 138 826 
 
 Kelly v. Auchenlea Coal Co. 
 
 (1911), 48 Scotch L. R. 
 
 768; 4 B. W. C. C. 417.... 67 
 Kelly v. Kerry County Coun- 
 cil (1908) 42 Irish L. T. 23; 
 
 IB. W. C. C. 194 102 
 
 Kelly v. Owners of the " Foam 
 
 Queen" (1910), 3 B. W. C. 
 
 C. 113 87 
 
 Kelly v. York Street Flax 
 
 Spinning Co. (1909), 43 
 
 Irish L. T.J.81;2B. W. C. 
 
 C. 493. 243 
 
 Kemmler, Matter of, 136 U. 
 
 S. 436 624 
 
 Kempson v. Owners of
 
 TABLE OF CASES REPORTED AND CITED 
 
 xlix 
 
 Page 
 
 Schooner ' ' Moss Rose ' ' 
 
 (1910), 4 B. W. C. C. 101.. 574 
 Kerr v. William Baird & Co. 
 
 (1911), 48 Scotch L. R. 
 
 646; 4 B. W. C. C. 397 92 
 
 Kerr and another v. Stewart 
 
 (1909), 43 Irish L. T. 119; 
 
 2B. W. C. C. 454 398 
 
 Kendall v. United States, 12 
 
 Pet. 524, 618 800 
 
 Keyser v. Burdick & Co. 
 
 (1910), 4B. W. C. C. 87.. 83 
 Kidd, Dater & Price Co. v. 
 
 Musselman Grocer Co., 217 
 
 U. S. 461; 30 Sup. Ct. 606; 
 
 54 L. Ed. 839 730 
 
 Kiley v. C., M. & St. P. Ry. 
 
 Co., 142 Wise. 154; 125 
 
 N. W. 464 669 
 
 Kiley v. Chicago, Milwaukee 
 
 & St. Paul Ry. Co., 138 
 
 Wise. 215 811,812 
 
 Kilpatrick v. Grand Trunk 
 
 Ry. Co., 74 Vt. 288 820 
 
 King v. Phoenix Assurance 
 
 Co. (1910), 3 B. W. C. C. 
 
 442 561 
 
 King v. Sarria, 69 N. Y. 
 
 31 798 
 
 Kirkham v. Wheeler-Osgood 
 
 Co., 39 Wash. 415; 81 Pac. 
 
 869 734 
 
 Kitchenham v. Owners of S. S. 
 
 "Johannesburg" (1910), 4 
 
 B. W. C. C. 91; aff'd 4 B. 
 
 W. C. C. 311 87 
 
 Knott v. Tingle Jacobs & Co. 
 
 (1910), 4B. W. C. C. 55.. 249 
 Knowles, Ex parte, 5 Cal. 301 801 
 Krzus v. Crow's Nest Pass 
 
 Coal Co. (1911), 4 B. W. C. 
 
 C. 469 321 
 
 Kyle v. M'Gintys (1911), 48 
 
 Scotch L. R. 474; 4 B. W. 
 
 C. C. 389. . . 359 
 
 Lake Shore Ry. v. Smith, 173 
 
 U. S. 684 825 
 
 Langley v. Reeve (1910), 3 B. 
 
 W. C. C. 175 62 
 
 Lankester v. Miller-Hether- 
 
 ington (1910), 4 B. W. C. C. 
 
 80 352 
 
 Lawrie v. James Brown & 
 
 Co. (1908), 45 Scotch L. R. 
 
 477; IB. W. C. C. 137.... 573 
 Lawton v. Steele, 152 U. S. 
 
 133; 14 Sup. Ct. 499; 38 L. 
 
 Ed. 385 626,726 
 
 Leach v. Hickson (1911), 4 B. 
 
 W. C. C. 153 360 
 
 Leach v. Oakley, Street & Co. 
 
 (1910), 4B. W. C. C. 91.. 83 
 Leavitt v. Morris, 105 Minn. 
 
 170; 117 N. W. 393; 17 L. 
 
 R. A. (N. S.) 984 749 
 
 Lee v. William Baird & Co. 
 
 (1908), 45 Scotch L. R. 717; 
 
 1B.W.C.C.34 237 
 
 Leeds & Liverpool Canal Co. 
 
 v. Hesketh (1910), 102 L. 
 
 T. 663; 3 B. W. C. C. 301 . . 473 
 Lees v. Waring & Gillow (Fer- 
 guson, third party) (1909), 
 
 2B. W. C. C. 474 280 
 
 Lees & Sykes v. Dunkerley 
 
 Brothers (1910), 103 L. T. 
 
 467; 4 B. W. C. C. 115.... 351 
 Lemieux v. Young, 211 U. S. 
 
 489; 29 Sup. Ct. 174; 53 L. 
 
 Ed. 295 730 
 
 Leishman v. William Dixon 
 
 (1910), 47 Scotch L. R. 410; 
 
 3 B. W. C. C. 560. . . 126
 
 1 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 Leisy v. Hardin, 135 U. S. 
 
 100 826 
 
 Leonard v. Columbia & Co., 
 
 84 N. Y. 48 798 
 
 License Cases, 5 How. 504 . . 827 
 Lindsay v. M'Glashen & Son 
 
 (1908), 45 Scotch L. R. 559; 
 
 1B.W. C.C.85 319 
 
 Lindsley v. Carbonic Gas Co., 
 
 220 U. S. 61, 78 844 
 
 Littleford v. Connell (1909), 
 
 3 B. W. C. C. 1 210 
 
 Liverpool S. S. Co. v. Phoenix 
 
 Ins. Co., 129 U. S. 397.... 796 
 Lloyd v. Sugg & Co. (1900), 
 
 81 L. T. 768; 2 W. C. C. 5 64 
 Loan Association v. Topeka, 
 
 20 Wall. 655; 22 L. Ed. 455 731 
 Lochner v. New York, 198 
 
 U.S. 45 631,829 
 
 Loewe v. Lawlor, 208 U. S. 
 
 274 816 
 
 London & North- Western 
 
 Railway v. Taylor (1910), 
 
 4B. W. C. C. 11 479 
 
 Longyear v. Buck, 83 Mich. 
 
 236; 47 N. W. 234; 10 L. R. 
 
 A. 43 749 
 
 Lord v. Equitable Life Assur. 
 
 Soc., 194 N. Y. 212 649 
 
 Losh v. Evans & Co. (1902), 
 
 5 W. C. C. 17 97 
 
 Lottawanna, The, 21 Wall. 
 
 558, 577.. 776, 826, 838, 
 
 841, 842, 846 
 Lottery Case, 188 U. S. 321, 
 
 353,355 816,842 
 
 Louisville & N. Ry. v. Ken- 
 tucky, 161 U. S. 677. . .825, 827 
 Louisville & Nashville R. R. 
 
 Co. v. Melton, 218 U. S. 
 
 36 803, 823, 829, 834, 844 
 
 Louisville, N. O. & T. Ry. 
 
 Page 
 
 Co. v. Mississippi, 133 U. S. 
 
 587 805, 825 
 
 Lovelady & Others v. Berrie 
 
 (1909), 2 B. W. C. C. 62. . 62 
 Lowe v. M. Myers & Sons 
 
 (1906), 2 K. B. 265; 95 L. 
 
 T. 35; 8 W. C. C. 22. . .397, 407 
 Lowe v. Pearson (1899), 79 
 
 L. T. 654; 1 W. C. C. 5... 93 
 Lowell v. Boston, 111 Mass. 
 
 454; 15 Am. Rep. 39 731 
 
 Lowry v. Sheffield Coal Co. 
 
 (1907) 24 T. L. R. 142; 1 B. 
 
 W. C. C. 1 109 
 
 Luxton v. North River Bridge 
 
 Co., 153 U. S. 525 814 
 
 Lyman v. Boston & Worces- 
 ter R. Corp., 4 Gush. 
 
 (Mass.) 288 720 
 
 Lynch v. Pierce, 1 Bradbury's 
 
 P. &P. R. 594 110 
 
 Lyng v. Michigan, 135 U. S. 
 
 161; 10 Sup. Ct. 725; 34 L. 
 
 Ed. 150 733 
 
 Lysons v. Andrew Knowles & 
 
 Sons (1901), 3 W. C. C. 1 . . 251 
 
 M 
 
 M'Carthy v. Norcott (1908), 
 
 43 Irish L. T. 17; 2 B. W. 
 
 C. C. 279 123 
 
 McCulloch v. Maryland, 4 
 
 Wheat. 316; 4 L. Ed. 579 
 
 693, 844 
 McCune v. Essig, 199 U. S. 
 
 382 818 
 
 McDermott v. Owners of S. S. 
 
 Tintoretto (1910), 103 L. T. 
 
 769; 4 B. W. C. C. 123.... 279 
 McDonald v. Owners of 
 
 Steamship "Banana" 
 
 (1908), IB. W. C. C. 185.. 89 
 McGlone v. Womack, 129
 
 TABLE OF CASES REPORTED AND CITED 
 
 11 
 
 Page 
 
 Ky. 274; 111 S. W. 688; 17 
 L. R. A. (N. S.)855 747 
 
 McKee v. Great Northern 
 Railway Co. (1908), 42 
 Irish L. T. 132; 1 B. W. C. 
 C. 165 79 
 
 McKnight v. Hodge, 55 Wash 
 289; 104 Pac. 504 750 
 
 McKrill v. Howard & Jones 
 (1909), 2 B. W. C. C. 460.. 119 
 
 McLean v. Moss Bay Haem- 
 atite Iron & Steel Co. 
 (1910), 3B. W. C. C. 402.. 317 
 
 McLean v. Moss Bay Haem- 
 atite Iron & Steel Co. 
 (1909), 100 L. T. 781 ; 2 B. 
 W. C. C. 282. 320 
 
 M'Clelland v. Todd (1909), 
 43 Irish L. T. J. 75; 2 B. 
 W. C. C. 472 112 
 
 McNamara v. Washington 
 Terminal Co., 38 Wash. 
 Law Rep. 343 824 
 
 McNamara & Co. v. Burtt 
 (1911), 4B. W. C. C. 151. 478 
 
 McNeil, Ex parte, 13 Wall. 
 423 797,799 
 
 McNicholas v. Dawson, 68 
 L. J. (Q. B.) 470 819 
 
 McShane v. Harrison (March 
 1912), reported in "The 
 Policy Holder," April 10, 
 1912, p. 296 50 
 
 Macandrew v. Gilhooley 
 (1911), 48 Scotch L. R. 
 511; 4 B. W. C. C. 370.... 572 
 
 Mackinnon v. Miller (1909), 
 46 Scotch L. R. 299; 2 B. 
 W. C. C. 64 51,179 
 
 Maginn v. Carlingford Lough 
 Steamship Co. (1909), 43 
 Irish L. T. 123; 2 B. W. C. 
 C. 224. . . 209 
 
 Page 
 Magoun v. 111. Trust & Sav. 
 
 Bank, 170 U. S. 283, 294 
 
 613, 829 
 Mahomed v. Maunsell (1907), 
 
 1 B. W. C. C. 269 6 
 
 Main Colliery Co., v. Davies 
 
 (1900), 80 L. T. 674; 2 W. 
 
 C. C. 108 317 
 
 Main Colliery Co. v. Davies 
 
 (1900), A. C. 358; 1 W. C. 
 
 C. 92 324 
 
 Malone v. Cayzer, Irvine & 
 
 Co. (1908), 45 Scotch L. R. 
 
 351; IB. W. C. C. 27 208 
 
 Malone v. Railroad, 65 la. 417 831 
 Marbury v. Madison, 1 
 
 Cranch, 137; 2 L. Ed. 60 
 
 692, 697 
 Marks v. Carne (1908), 100 
 
 L. T. 950; 2 B. W. C. C. 
 
 186 179 
 
 Marshall v. East Holywell 
 
 Coal Co. (1905), 7 W. C. C. 
 
 19 55 
 
 Marshall v. Orient Steam 
 
 Navigation Co. (1910), 1 
 
 K. B. 79; 3 B. W. C. C. 15 385 
 Marshall v. Owners of Ship 
 
 "Wild Rose" (1910), 3 B. 
 
 W. C. C. 514 403 
 
 Marshall v. Owners of Ship 
 
 "Wild Rose" (1909), 100 
 
 L. T. 739; 2 B. W. C. C. 76 402 
 Martin v. Barnett (1910), 3 
 
 B. W. C. C. 146 237 
 
 Martin v. Fullerton & Co. 
 
 (1908), 45 Scotch L. R. 
 
 812; IB. W. C. C. 168.... 85 
 Martin v. Hunter, 1 Wheat. 
 
 304; 4 L. Ed. 97 692, 800 
 
 Martin v. Pittsburg & Lake 
 
 Erie R. R. Co., 203 U. S. 
 
 284. . 776, 805, 823, 829, 834, 841
 
 lii 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 Martin v. The Southwark, 
 
 191 U. S. 1 805 
 
 Martin v. Travelers' Ins. Co., 
 
 IF. &F. 505 57 
 
 Marvin v. Trout, 199 U. S. 
 
 212 634,635 
 
 Matthews v. Bedworth 
 
 (1899), 1 W. C. C. 124.... 100 
 Mathews v. St. Louis & San 
 
 Francisco R. R. Co., 121 
 
 Mo. 298; 24 S. W. 591; 25 
 
 L. R. A. 161 720 
 
 Maundrell v. Dunkerton Col- 
 lieries Co. (1910), 4 B. W. 
 
 C. C. 76, 78 485 
 
 Max Morris, The, 137 U. S. 1 
 
 811, 819, 834 
 M'Daid v. Steel (1911), 48 
 
 Scotch L. R. 765; 4 B. W. 
 
 C. C. 412 92 
 
 M'Dougall v. M'Dougall 
 
 (1911), 48 Scotch L. R. 
 
 315; 4 B. W. C. C. 373.... 112 
 Mead v. Lockhart (1909), 2 
 
 B. W. C. C. 398 469 
 
 Medler v. Medler (1908), 1 B. 
 
 W. C. C. 332 319 
 
 Merry & Cuninghame v. 
 
 Black (1909), 46 Scotch 
 
 L. R. 812; 2 B. W. C. C. 372 276 
 Merryman, Ex parte, 17 Fed. 
 
 Cases, 9, 487 801 
 
 M'Ghee v. Summerlee Iron 
 
 Co. (1911), 48 Scotch L. R. 
 
 807; 4 B. W. C. C. 424.. .. 237 
 Midland Ry. Co. v. Sharpe 
 
 (1904), 6 W. C. C. 119.... 247 
 Milner v. Great Northern Ry. 
 
 Co. (1900), 82 L. T. 187; 2 
 
 W. C. C. 51 108 
 
 Minneapolis & St. L. Ry. Co. 
 
 v. Beckwith, 129 U. S. 
 
 26 .622 
 
 Page 
 Minneapolis, etc., Railway 
 
 Co. v. Herrick, 127 U. S. 
 
 210; 8 Sup. Ct. 1176; 32 L. 
 
 Ed. 109.. 613, 724, 810, 
 
 823, 829, 833 
 
 M'Innes v. Dunsmuir & Jack- 
 son (1908), 45 Scotch L. R. 
 
 804; 1 B. W. C. C. 226 57 
 
 Minnesota Iron Co. v. Kline, 
 
 199 U. S. 593; 26 Sup. Ct. 
 
 159; 50 L. Ed. 322; Stats. 
 
 Wise. 1816.. 18, 652, 655, 
 
 669, 810, 820, 823, 829 
 Minor v. Erie R. R. Co., 171 
 
 N. Y. 566 649 
 
 Minneapolis, St. P. & S. S. M. 
 
 R. Co. v. R. R. Com., 136 
 
 Wise. 146; 116 N. W. 905; 
 
 17 L. R. A. (N. S.) 821 .... 677 
 Missouri R. R. Comrs. v. 111. 
 
 Central R. R. Co., 203 U. S. 
 
 335 798 
 
 Missouri, K. & T. R. R. v. 
 
 Medaris, 60 Kan. 151 831 
 
 Missouri Pac. Ry. Co. v. 
 
 Humes, 115 U. S. 512, 523 
 
 613, 622 
 Missouri Pacific Ry. Co. v. 
 
 Mackey, 127 U. S. 205. . 18, 
 
 613, 624, 627, 652, 655, 724, 
 
 796, 798, 810, 820, 823, 829, 
 
 833, 844 
 Mitchell v. Glamorgan Coal 
 
 Co. (1907), 23 T. L. R. 
 
 588; 9 W. C. C. 16 400 
 
 Mitchell v. Grant & Aldcroft 
 
 (1905), 7 W. C. C. 113.... 64 
 Mitchell v. Williams, 27 Ind. 
 
 62 749 
 
 M'Kee v. John S. Stein & Co. 
 
 (1909), 47 Scotch L. R. 39; 
 
 3B. W. C. C. 544 210 
 
 M'Lauchlan v. Anderson
 
 TABLE OF CASES REPORTED AND CITED 
 
 liii 
 
 Page 
 
 (1911), 48 Scotch L. R. 
 349; 4 B. W. C. C. 376 ... 107 
 
 M'Neice v. Singer Sewing 
 Machine Co. (1911), 48 
 Scotch L. R. 15; 4 B. W. 
 C. C. 351 106 
 
 Mobile, County of, v. Kim- 
 ball, 102 U. S. 691 807 
 
 Mobile, etc., Ry. v. Bram- 
 berg, 141 Ala. 258 800 
 
 Mobile, Jackson & Kansas 
 City Railroad Co. v. Turn- 
 ipseed, 219 U. S. 35 803, 844 
 
 Molloy v. South Wales An- 
 thracite Colliery Co., 
 (1910), 4 B. W. C. C. 65 
 
 108, 110 
 
 Mondou v. N. Y., New Haven 
 & Hartford Railroad Co., 
 223 U. S. 1 776 
 
 Mondou v. N. Y., New Haven 
 & Hartford R. R. Co., 82 
 Conn. 373 788, 833 
 
 Moore v. Crow's Nest Pass 
 Coal Co. (1910), 15 Br. C. 
 R. 391; 4 B. W. C. C. 451 399 
 
 Moore v. Manchester Liners 
 (1908), 3 B. W. C. C. 527; 
 rev'g 1 K. B. 417; 2 B. W. 
 C. C. 87 72,84,107 
 
 Moore v. Moore, 47 N. Y. 467 802 
 
 Morgan v. William Dixon 
 (1910), 48 Scotch L. R. 
 296; 4 B. W. C. C. 363.... 384 
 
 Morgan v. Owners of S. S. 
 Zenaida (1909), 25 T. L. R. 
 446; 2 B. W. C. C. 19 53 
 
 Morris v. Lambeth Borough 
 Council (1905), 8 W. C. C. 
 1 90 
 
 Morrison v. Clyde Navigation 
 Trustees (1908), 46 Scotch 
 L. R. 38; 2 B. W. C. C. 99 95 
 
 Page 
 Morter v. Great Eastern Ry. 
 
 Co. (1908), 2 B. W. C. C. 
 
 480 190 
 
 Mortimer v. Secretan (1909), 
 
 100 L. T. 721; 2 B. W. C. 
 
 C. 446 399 
 
 Moss & Co. v. Akers (1911), 
 
 4B. W. C. C. 294 453 
 
 Mountain v. Parr (1899), 80 
 
 L. T. 342; 1 W. C. C. 10. . 408 
 Mullen v. D. Y. Stewart & 
 
 Co. (1908), 45 Scotch L. R. 
 
 729; 1 B. W. C. C. 204.... 101 
 Muller v. The Batavia Line 
 
 (1909), 2 B. W. C. C. 495 . . 486 
 Mulrooney v. Todd & Brad- 
 ford Corporation (1908), 
 
 100 L. T. 99; 2 B. W. C. C. 
 
 191 178 
 
 Munn v. Illinois, 94 U. S. 113 
 
 776, 818, 825, 828, 834, 841 
 Murphy v. Berwick (1909), 
 
 43 Irish L. T. 126; 2 B. W. 
 
 C. C. 103 96 
 
 Murphy v. Enniscorthy 
 
 Board of Guardians (1908), 
 
 42 Irish L. T. 246; 2 B. W. 
 
 C. C. 291 121 
 
 Murray v. Denholm & Co. 
 
 (1911), 48 Scotch L.R. 896 49 
 Murray v. So. Car. R. R. Co., 
 
 1 McMullan, 385 804 
 
 Musco v. United Surety Co., 
 
 196 N. Y. 459 644 
 
 Mutual Accident Assn. v. 
 
 Barry, 131 U.S. 100, 121; 9 
 
 Sup.Ct.R.755;33L.Ed.60 48 
 Mystic, The, 44 Fed. Rep. 399 811 
 
 N 
 
 Narramore v. Cleveland, C. 
 C. & St. L. Ry. Co., 96 Fed. 
 Rep. 298 817,820
 
 liv 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 Nashville, etc., R. R. v. Ala- 
 bama, 128 U. S. 96. .824, 
 
 825, 834, 838, 846 
 Nashville, etc., R. R. Co. v. 
 
 Carroll, 6 Heisk. 347 819 
 
 National Telephone Co. v. 
 
 Smith (1909), 46 Scotch L. 
 
 R.988;2B.W.C.C.417.. 295 
 Naylor v. Musgrave Spinning 
 
 Co. (1911), 4 B. W. C. C. 
 
 286 95 
 
 Nelson v. Belfast Corporation 
 
 (1908), 42 Irish L. T. 223 ;1 
 
 B. W. C. C. 158 108, 109 
 
 Neville v. Kelly Bros. & Mit- 
 chell (1907), 13 B. C. 125; 
 
 1 B. W. C. C. 432 52 
 
 New Monckton Colliers v. 
 Keeling (1911), 4 B. W. C. 
 
 C. 332 319 
 
 Newton v. Atchison, 31 Kan. 
 
 151; 1 Pac. 288; 47 Am. 
 
 Rep. 486 750 
 
 New York, N. H. & H. R. R. 
 
 Co. v. New York, 165 U. S. 
 
 628 825 
 
 New York, New Haven & 
 
 Hartford Railroad Co. v. 
 
 Walsh 785,790 
 
 Nicholson v. Piper (1906), 96 
 
 L. T. 75; 9 W. C. C. 123; 
 
 aff'd (1907), A. C. 215; 97 
 
 L.T. 119;9W.C. C. 128.. 454 
 Nisbet v. Rayne & Burn 
 
 (1910),2K.B.689;3B.W. 
 
 C. C. 507 49,50 
 
 New Jersey Steamboat Co. v. 
 
 Brockett, 121 U. S. 637. .. 805 
 Noble State Bank v. Haskell, 
 
 219 U. S. 104; 31 Sup. Ct. 
 
 186;32L.R.A.(N.S.)1062 
 
 643, 645, 648, 724, 770 
 Noble State Bank v. Has- 
 
 Page 
 
 kell, 22 Okla. 48; 97 Pac. 
 
 590 724, 729 
 
 Nolan v. Porter & Sons 
 
 (1909), 2 B. W. C. C. 106 
 
 80, 81, 87 
 Norfolk, etc., Ry. Co. v. 
 
 Pennsylvania, 136 U. S. 
 
 114 835 
 
 Norman & Burt v. Walder 
 
 (1904), 90 L. T. 531; 6 W. 
 
 C. C. 124 483 
 
 Norman v. Heist, 5 Watts. & 
 
 Serg. 171 618 
 
 North American Life & Acci- 
 dent Ins. Co. v. Burroughs, 
 
 69 Penn. 43 55 
 
 Northern Pacific R. R. Co. v. 
 
 Babcock, 154 U. S. 190 
 
 789, 798 
 Northern Pac. Ry. Co. v. 
 
 Castle, 172 Fed. Rep. 841 . . 819 
 Northern Pac. R. R. Co. v. 
 
 Hambly, 154 U. S. 349. ... 804 
 Northern Pac. R. R. Co. v. 
 
 Herbert, 116 U. S. 642. ... 804 
 Northern Pac. R. R. Co. v. 
 
 Washington, 222 U. S. 370 846 
 Northern Securities Co. v. 
 
 United States, 193 U. S. 
 
 197 827 
 
 o 
 
 O'Brien v. Star Line (1908), 
 
 45 Scotch L. R. 935; 1 B. 
 
 W. C. C. 177 85 
 
 O'Donovan v. Cameron, 
 
 Swan & Co. (1901), 2 Irish 
 
 R. 633 322 
 
 Offield v. New York, New 
 
 Haven & Hartford R. R. 
 
 Co., 203 U. S. 372; 27 Sup. 
 
 Ct. 72; 51 L. Ed. 231 725 
 
 O'Hara v. Hayes (1910), 44
 
 TABLE OP CASES REPORTED AND CITED 
 
 Iv 
 
 Page 
 
 Irish L. T. 71; 3 B. W. C. 
 C. 586 58 
 
 Ohio & Mississippi Ry. Co. v. 
 Lackey, 78 111. 55 621 
 
 Ohio Oil Co. v. Indiana, 177 
 U. S. 190; 20 Sup. Ct. 576; 
 44 L. Ed. 729 725 
 
 Oilure Mfg. Co. v. Pidduck- 
 Ross Co., 38 Wash. 137; 80 
 Pac. 276 750 
 
 O'Keefe v. Lovatt (1901), 4 
 W. C. C. 109 208 
 
 Old Dominion S. S. Co. v. 
 Gilmore, 207 U. S. 398 805 
 
 Olsen v. Smith, 195 U. S. 332 815 
 
 Omaha & R. V. R. Co. v. 
 Chollette, 33 Neb. 143; 49 
 N. W. 1114 722 
 
 O'Neill v. The Anglo- Ameri- 
 can Oil Co. (1909), 2 B. W. 
 C. C. 434 295 
 
 O'Neill v. Ropner & Co., 42 
 Irish L. T. 3; 2 B. W. C. C. 
 334 475 
 
 Opinion of the Justices of the 
 Mass. Supreme Judicial 
 Court on the Personal In- 
 juries Act of 1911, 209 
 Mass, 607; 96 N. E. 308 
 
 670, 776 
 
 Ordway v. Central Nat. 
 Bank, 47 Md. 245 799 
 
 Orient Ins. Co. v. Daggs, 172 
 U. S. 557 829 
 
 Osband v. Tabor (1912), 
 "The Policy Holder," 
 April 10, 1912, p. 296 242 
 
 Osborne v. Florida, 164 U. S. 
 650 825 
 
 Osceola, The, 189 U. S. 158. . 638 
 
 Owners of the Steamship 
 "Segura" v. Blampied 
 (1911), 4B. W. C. C. 192. . 453 
 
 Page 
 
 Owners of Steamship "Swan- 
 sea Vale" v. Rice (1911), 
 104 L. T. 658; 4 B. W. C. C. 
 
 298 402 
 
 Owners of Vessel "Tynron" 
 v. Morgan (1909), 100 L. T. 
 461; 2 B. W. C. C. 406.... 486 
 
 Pacific Navigation Co. v, 
 
 Pugh & Son (1907), 23 T. 
 
 L. R. 622; 9 W. C. C. 39. . 351 
 Pacific Railroad Removal 
 
 Cases, 115 U. S. 1 814 
 
 Paddington Borough Coun- 
 cil v. Stack (1909), 2 B. W. 
 
 C. C. 402 385 
 
 Page v. Burtwell (1908), 1 B. 
 
 W. C. C. 267 7 
 
 Parrot v. Wells, Fargo & Co., 
 
 15 Wall. 524 620 
 
 Paterson v. A. G. Moore & 
 
 Co. (1910), 47 Scotch L. R. 
 
 30; 3 B. W. C. C. 541 484 
 
 Patterson v. The Eudora, 190 
 
 U. S. 169.805, 810, 811, 816, 838 
 Patton v. T. & P. Ry. Co., 
 
 179 U. S. 658 805 
 
 Payne v. N. Y., Susquehanna 
 
 & W. R. Co., 201 N. Y. 436 
 
 45,46 
 Payne and another v. Clifton 
 
 (1910), 3B. W. C. C. 439.. 452 
 P., C. C. & St. L. R. R. Co. v. 
 
 Lightheiser, 212 U. S. 560 823 
 Pearce v. London & South 
 
 Western Ry. Co. (1899), 2 
 
 W. C. C. 152 90 
 
 Pearce v. London & South 
 
 Western Ry. Co. (1900), 82 
 
 L. T. 487; 2 W. C. C. 47. . 107 
 Peers v. Astley & Tyldesley
 
 Ivi 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 Collieries Co. (1901), 3 W. 
 
 C. C. 185 249 
 
 Peirce v. Van Dusen, 78 Fed. 
 
 Rep. 693 810, 838 
 
 Penn v. Spiers & Pond 
 
 (1908), 1 B. W. C. C. 401 
 
 249, 404 
 Pennsylvania v. Wheeling 
 
 Bridge Co., 13 How. 518. . 816 
 Pennsylvania R. R. v. Knight, 
 
 192 U. S. 21 826 
 
 People v. Arensberg, 105 
 
 N. Y. 123 632 
 
 People ex rel. Schurz v. Cook, 
 
 110 N. Y. 443; S. C., 148 
 
 U. S. 397 649 
 
 People v. Gates, 43 N. Y. 40 802 
 People v. Gillson, 109 N. Y. 
 
 389, 404 632 
 
 People v. Hawkins, 157 N. Y. 
 
 1 632 
 
 People v. Marcus, 185 N. Y. 
 
 257 633 
 
 People v. Marx, 99 N. Y. 377 632 
 People ex rel. Farrington v. 
 
 Mensching, 187 N. Y. 8, 
 
 16 631 
 
 People v. O'Brien, 111 N. Y. 
 
 1 647 
 
 People v. Orange County 
 
 Road Con. Co., 175 N. Y. 
 
 84 632 
 
 People ex rel. Hatch v. Rear- 
 don, 184 N. Y. 431 613 
 
 People v. Walker, 17 N. Y. 
 
 502 730 
 
 People v. Welch, 141 N. Y. 
 
 273 800 
 
 People v. Williams, 189 N. Y. 
 
 131, 134 633 
 
 Perry v. The Anglo-American 
 
 Decorating Co. (1910), 3 
 
 B. W. C. C. 310 . . 77 
 
 Page 
 Perry v. Clements (1901), 3 
 
 W. C. C. 56 360 
 
 Perry v. Wright (1907), 98 
 
 L. T. 327; 1 B. W. C. C. 
 
 351 244,251,252 
 
 Peterson v. The Chandos 
 
 (D. C.), 4 Fed. Rep. 645.. 719 
 Philadelphia, B. & W. R. R. 
 
 Co. v. Tucker, 35 App. D. 
 
 C. 123; 38 Washington Law 
 
 Reporter, 230 820 
 
 Phillips v. State, 77 Ohio, 215 770 
 Phillips v. Williams (1911), 4 
 
 B. W. C. C. 143 109 
 
 Pierce v. The Provident 
 
 Clothing & Supply Co. 
 
 (1911), 104 L. T. 473; 4 B. 
 
 W. C. C. 242 106 
 
 Pierce v. Worcester & Nashua 
 
 R. R. Co., 105 Mass. 199. . 720 
 Pimms v. Pearson (1909), 2 
 
 B. W. C. C. 489 240 
 
 Pittsburg & Southern Coal 
 
 Co. v. Bates, 156 U. S. 577 810 
 Pittsburg, etc., Ry. Co. v. 
 
 Ross, 212 U. S. 560 834 
 
 Plaquemines Fruit Co. v. 
 
 Henderson, 170 U. S. 521 . . 800 
 Platt v. Craig, 66 Ohio St. 
 
 75 783 
 
 Plessy v. Ferguson, 163 U. S. 
 
 537 805 
 
 Pollard v. Goole & Hull 
 
 Steam Towing Co. (1910), 
 
 3B. W. C. C. 360 181 
 
 Pomfret v. Lancashire & 
 Yorkshire Ry. Co. (1903), 
 
 89 L. T. 000; 5 W. C. C. 22 80 
 Pope v. Hill's Plymouth Co. 
 
 (1910), 102 L. T. 633; 3 B. 
 
 W. C. C. 339 82 
 
 Porton v. Central (Unem- 
 ployed) Body for London
 
 Ivii 
 
 Page 
 
 (1908), 102 L. T. 102; 2 B. 
 
 W. C. C. 296 120 
 
 Powers v. Smith (1910), 3 B. 
 
 W. C. C. 470 61 
 
 Price v. Burnyeat, Brown & 
 
 Co. (1907), 2 B. W. C. C. 
 
 337 276 
 
 Price v. Marsden & Sons 
 
 (1899), SOL. T. 15; 1 W. C. 
 
 C. 108 251 
 
 Priestley v. Fowler, 3 Mees. 
 
 & W. 1 804 
 
 Proctor & Sons v. Robinson 
 
 (1909), 3 B. W. C. C. 41 
 
 476, 485 
 
 Pryce v. Penrikyber Naviga- 
 tion Colliery Co. (1901), 85 
 
 L. T. 477; 4 W. C. C. 115.. 324 
 Pulliam v. Illinois Central R. 
 
 R. Co., 75 Miss. 627 820 
 
 Pullman Co. v. Adams, 189 
 
 U. S. 420 825 
 
 Purdy v. Erie R. R. Co., 162 
 
 N. Y. 42 649 
 
 Purse v. Hayward (1908), 1 
 
 B. W. C. C. 216 . . 56 
 
 Quackenbush v. Wis. & M. 
 
 R. R. Co., 62 Wis. 411.... 622 
 Quinn v. Flynn (1910), 44 
 
 Irish L. T. R. 183; 3 B. W. 
 
 C. C. 594 386 
 
 Quinn v. M'Callum (1908), 
 
 46 Scotch L. R. 141; 2 B. 
 
 W. C. C. 339. . . 485 
 
 Radcliffe v. The Pacific 
 Steam Navigation Co. 
 (1910), 102 L. T. 206; 3 B. 
 W. C. C. 185. . . 470 
 
 Page 
 Radcliff's Exrs. v. Mayor, 
 
 etc., of Brooklyn, 4 N. Y. 
 
 195 643 
 
 Rahrer, In re, 140 U. S. 545. . 807 
 Railroad Co. v. Foxworth, 41 
 
 Fla. 1 820 
 
 Railroad Co. v. Lockwood, 17 
 
 Wall. 357 796 
 
 Railroad Co. v. Richmond, 19 
 
 Wall. 584 830 
 
 Railroad Co. v. Stankard, 56 
 
 Ohio St. 232 780 
 
 Railroad Co. v. Stevens, 95 
 
 U. S. 655 796 
 
 Railway Co. v. Hasterman, 
 
 72 Ohio St. 107 783 
 
 Raisler v. Oliver, 97 Alabama, 
 
 710 799 
 
 Rassmussen v. United States, 
 
 197 U. S. 516 803 
 
 Rayman v. Fields, No. 2 
 
 (1910), 102 L. T. 154; 3 B. 
 
 W. C. C. 123 452 
 
 Reed v. Canfield, Fed. Gas. 
 
 No. 11,641 719 
 
 Reed v. Great Western Ry. 
 
 Co. (1908), 99 L. T. 781; 2 
 
 B. W. C. C. 109 95 
 
 Reed v. Smith, Wilkinson & 
 
 Co. (1910), 3 B. W. C. C. 
 
 223 180 
 
 Reeks v. Kynoch (1901), 4 
 
 W. C. C. 15 126 
 
 Rees v. Penrikyber Naviga- 
 tion Colliery Co. (1902), 87 
 
 L. T. 661; 5 W. C. C. 117.. 321 
 Rees v. Powell Duffryn Steam 
 
 Coal Co. (1900), 4 W. C. C. 
 
 17 126 
 
 Rees v. Thomas (1899), 80 
 
 L.T.578;! W.C.C.9.... 99 
 Refuge Assurance Co. v. Mil- 
 lar, 49 Scotch L. R. 67 105
 
 Iviii 
 
 TABLE OF CASES KEPORTED AND CITED 
 
 Page 
 Reid v. Colorado, 187 U. S. 
 
 137, 146 846 
 
 Rennie v. Reid (1908), 45 
 
 Scotch L. R. 814; 1 B. W. 
 
 C. C. 324 122 
 
 Rex v. Crossley (1909), 2 B. 
 
 W. C. C. 451 531 
 
 Rex v. Solomons (1909), 2 K. 
 
 B. 980 117 
 
 Rhodes v. Soothill Wood Col- 
 liery Co. (1908), 100 L. T. 
 
 15; 2 B. W. C. C. 377 407 
 
 Riley v. W. Holland & Sons 
 
 (1911), 1 K. B. 1029; 4 B. 
 
 W. C. C. 155 108 
 
 Rintoul v. Dalmeny Oil Co. 
 
 (1908), 45 Scotch L. R. 
 
 809; 1 B. W. C. C. 340 ... 209 
 Roanoke, The, 189 U. S. 185 826 
 Robb v. Connolly, 111 U. S. 
 
 624, 637 848 
 
 Robbins v. Shelby Taxing 
 
 District, 120 U. S. 489.807, 824 
 Roberts v. Benham (1910), 3 
 
 B. W. C. C. 430 406 
 
 Roberts v. Crystal Palace 
 
 Football Club (1909), 3 B. 
 
 W. C. C. 51 361 
 
 Robertson v. Allan Brothers 
 
 &Co. (1908), 98 L.T. 821; 
 
 IB. W. C. C. 172 85 
 
 Robertson v. Baldwin, 165 
 
 U. S. 275. . . .639, 640, 800, 805 
 Robertson v. Hall Brothers 
 
 Steamship Co. (1910), 3 
 
 B. W. C. C. 368 316 
 
 Robinson v. Anon (1904), 6 
 
 W. C. C. 117 316 
 
 Rodemacher v. Milwaukee & 
 
 St. P. R. R. Co., 41 la. 
 
 297; 20 Am. Rep. 592 .... 720 
 Rogers v. Cardiff Corpora- 
 tion, 8 W. C. C. 51 334 
 
 Page 
 Roles v. Pascall & Sons 
 
 (1911), 104 L. T. 298; 4 B. 
 
 W. C. C. 148 363 
 
 Roper v. Greenwood (1900), 
 
 83 L. T.471;3W.C.C.23 
 
 48, 55, 57 
 Rosenquist v. Bowring & Co. 
 
 (1908), 98 L. T. 773; 1 B. 
 
 W. C. C. 395 247 
 
 Rothwell v. Davies (1903), 5 
 
 W. C. C. 141 238 
 
 Rowland v. Wright (1908), 1 
 
 B. W. C. C. 192 103 
 
 Ruabon Coal Co. v. Thomas 
 
 (1909), 3B. W.C.C.32... 475 
 Rush worth v. Judges, 58 N. J. 
 
 L. 97. . . 801 
 
 St. John v. New York, 201 
 
 U. S. 633 613 
 
 St. Louis, etc., Ry. Co. v. 
 
 Taylor, 210 U. S. 281, 
 
 799, 806, 811, 814, 815, 834 
 St. Louis & St. F. R. R. v. 
 
 Delk, 158 Fed. Rep. 931 . . 831 
 St. Louis & San Francisco R. 
 
 R. Co. v. Mathews, 165 
 
 U. S. 1; 17 Sup. Ct. 243; 41 
 
 L.Ed. 611 640,720 
 
 St. Louis, I. M. & S. Ry. Co. 
 
 v. Paul, 173 U. S. 404.... 823 
 St. Louis Bridge R. R. Co. v. 
 
 Callahan, 194 U. S. 628. .. 823 
 San Mateo County v. So. Pac. 
 
 Ry., 13 Fed. Rep. 151. .. . 828 
 Sapcote & Sons v. Hancock 
 
 (1911), 4B. W. C. C. 184.. 486 
 Sapphire, The, 18 Wall. 51 . . 819 
 Savings Society v. Coite, 6 
 
 Wall. 606; 18 L. Ed. 897. . 751 
 Scarff v. Metcalf, 107 N. Y. 
 
 211 638,639
 
 TABLE OF CASES REPORTED AND CITED 
 
 lix 
 
 Page 
 Schenk v. Union Pacific Ry. 
 
 Co., 5 Wyo. 430 622 
 
 Schintgen v. La Crosse, 117 
 
 Wis. 158; 94 N. W. 84. ... 682 
 Schlemmer v. Buffalo, R. & 
 
 P. Ry. Co., 205 U. S. 1 
 
 805-6, 810, 811, 815, 816, 
 
 820, 821, 834, 835, 838 
 Schnaier v. Navarre Hotel & 
 
 I. Co., 182 N. Y. 88 633 
 
 Schofield v. Orrell Colliery 
 
 Co. (1908), 100 L. T. 104; 2 
 
 B. W. C. C. 301 320 
 
 Schradin v. N. Y. C. & H. 
 
 R. R. R. Co., 194 N. Y. 
 534 646 
 
 Schuyler Nat. Bank v. Bol- 
 long, 24 N. W. 827 799 
 
 Scotstoun Estate Co. v. Jack- 
 son (1911), 48 Scotch L. R. 
 440; 4 B. W. C. C. 381 .... 405 
 
 Seattle v. Barto, 31 Wash. 
 141; 71 Pac. 735 750 
 
 Second Employers' Liability 
 Cases, 223 U. S. 1 45 
 
 Senior v. Fountains & Burn- 
 ley (1907), 23 T. L. R. 634; 
 9 W. C. C. 116 318 
 
 Sentell v. New Orleans, etc., 
 Railroad Co., 166 U. S. 
 698; 17 Sup. Ct. 693; 41 L. 
 Ed. 1169 735 
 
 Sewall v. Jones, 26 Mass., 9 
 Pick. 412 832 
 
 Sharman v. Holliday & Green- 
 wood (1903), 90 L. T. 46; 
 6 W. C. C. 147 471 
 
 Sharp v. Johnson & Co. 
 (1905), 92 L. T. 675; 7 W. 
 
 C. C. 28 75,77 
 
 Sharpe v. Midland Ry. Co. 
 
 (1903), 88 L. T. 545; 5 W. 
 C. C. 128; aff'd 247 
 
 Page 
 Shaw v. Railroad Co., 101 
 
 U. S. 557 832 
 
 Shaw v. Wigan Coal & Iron 
 
 Co. (1909), 3 B. W. C. C. 
 
 81 101 
 
 Sheeran v. F. & J. Clayton & 
 
 Co. (1909), 44 Irish L. T. 
 
 52; 3 B. W. C. C. 583 .... 54 
 Sheldon v. Hudson R. R. Co., 
 
 14 N. Y. 219 643 
 
 Sherlock v. Ailing, 93 U. S. 
 
 99 805, 835, 838, 846 
 
 Sherman v. Bingham, Fed. 
 
 Cases, No. 12,762 802 
 
 Sherman v. Maine Cent. R. 
 
 R. Co., 86 Me. 422; 30 All. 
 
 69 720 
 
 Shirt v. Calico Printers' As- 
 sociation (1909), 2 K. B. 
 
 51; 2 B. W. C. C. 342. . .67, 212 
 Shortall v. Puget Sound 
 
 Bridge & Dredging Co., 45 
 
 Wash. 290; 88 Pac. 212; 
 
 122 Am. St. Rep. 899 734 
 
 Simmon v. The Heath Laun- 
 dry Co. (1910), 102 L. T. 
 
 210; 3 B. W. C. C. 200.... 249 
 Simmons v. Faulds (1901), 3 
 
 W. C. C. 169 118 
 
 Simmons v. White Bros. 
 
 (1899), 80 L. T. 344; 1 W. 
 
 C. C. 89 315 
 
 Simpson v. Ebb w- Vale Steel, 
 
 Iron & Coal Co. (1905), 92 
 
 L. T. 282; 7 W. C. C. 101. 119 
 Singer v. Bedstead Co., 65 
 
 N. J. Eq.293 799 
 
 Sinking Fund Cases, 99 U. S. 
 
 718 828 
 
 Sinnott v. Davenport et al., 
 
 22 How. 242 797 
 
 Skailes v. Blue Anchor Line 
 
 (1910), 4B. W. C. C. 16.. 246
 
 Ix 
 
 TABLE OP CASES REPORTED AND CITED 
 
 Page 
 Skates v. Jones & Co. (1910), 
 
 3 B. W. C. C. 460 177 
 
 Smith v. Alabama, 124 U. S. 
 
 465, 479 838, 845, 846 
 
 Smith v. Baker, App. Gas. 
 
 1891, 325 820 
 
 Smith v. Boston & Maine R. 
 
 R. Co., 63 N. H. 25 720 
 
 Smith v. Coles (1905), 93 L. 
 
 T. 754; 8 W. C. C. 116 121, 334 
 Smith v. Cord Taton Colliery 
 
 Co. (1900), 2 W. C. C. 121 51 
 Smith v. Hughes (1905), 8 W. 
 
 C. C. 115 474 
 
 Smith v. Pearson & Shipley 
 
 (1909), 2 B. W. C. C. 468. 362 
 Smith v. South Normanton 
 
 Colliery Co. (1903), 1 K. 
 
 B. 204; 5 W. C. C. 14. .79, 110 
 Smith and another v. The 
 
 Lancashire & Yorkshire 
 
 Ry. Co. (1899), 79 L. T. 
 
 633; 1 W. C. C. 1 97 
 
 Sneddon and others v. Green- 
 field Coal & Brick Co. 
 
 (1910), 47 Scotch L. R. 337; 
 
 3 B. W. C. C. 557 76 
 
 Soon King v. Crowley, 113 
 
 U. S. 703 613 
 
 Southern Railway Co. v. 
 
 Reid, 222 U. S. 424 846 
 
 Southern Railway Co. v. 
 
 United States, 222 U. S. 20 
 
 838, 842 
 Southwestern Oil Co. v. 
 
 Texas, 217 U. S. 114 830 
 
 Spiers v. Elderslie Steamship 
 
 Co. (1909), 46 Scotch L. R. 
 
 893; 2 B. W. C. C. 205 ... 179 
 Spraigue v. Thompson, 118 
 
 U. S. 90 814 
 
 State v. Boone, 84 Ohio St. 
 
 346 .. . 776 
 
 Page 
 State v. Buchanan, 29 Wash. 
 
 602;70Pac. 52;59L. R. A. 
 
 342; 92 Am. St. Rep. 930 
 
 734, 738, 757 
 State v. Cassidy, 22 Minn. 
 
 312; 21 Am. Rep. 765 745 
 
 State v. Chicago, M. & St. 
 
 Paul R. Co., 136 Wis. 407 . . 833 
 State ex rel. v. Chittenden, 
 
 112 Wis. 569; 88 N. W. 
 
 587 677 
 
 State ex rel. Davis Smith Co. 
 
 v. Clausen, 117 Pac. Rep. 
 
 1101 (Wash.) . . . .667, 703, 776 
 State ex rel. Port Townsend 
 
 v. Clausen, 40 Wash. 95; 
 
 82 Pac. 187 705 
 
 State ex rel. Wallace D. Yaple 
 
 v. D. S. Creamer, as Treas- 
 urer of the State of Ohio, 
 
 00 Ohio St. 00; 00 Cent. 
 
 Rep. 00 764 
 
 State v. Curtiss, 35 Conn. 374 801 
 State ex rel. Mullen v. Doher- 
 
 ty, 16 Wash. 382; 47 Pac. 
 
 958; 58 Am. St. Rep. 39. .. 763 
 State v. Evans, 130 Wis. 381; 
 
 HON. W. 241 673 
 
 State v. Frame, 39 Ohio St. 
 
 399 749 
 
 State v. Guilbert, 56 Ohio St. 
 
 576 777, 780 
 
 State v. Harmon, 31 Ohio St. 
 
 250 780 
 
 State v. Hawkins, 44 Ohio St. 
 
 98 780 
 
 State ex rel. Cook v. Houser, 
 
 122 Wis. 534-561; 100 
 
 N. W. 964 677 
 
 State v. Hubbard, 22 C. C. 
 
 253; aff'd, 65 Ohio St. 574 777 
 State, etc., v. Kreutzberg, 114 
 
 Wis. 530; 90 N. W. 1098;
 
 TABLE OP CASES REPORTED AND CITED 
 
 Ixi 
 
 Page 
 
 58 L. R. A. 748; 91 Am. St. 
 Rep. 934 694 
 
 State ex rel. Augusta v. Los- 
 by, 115 Wis. 57; 90 N. W. 
 188 678 
 
 State ex rel. Olmstead v. 
 Mudgett, 21 Wash. 99; 57 
 Pac. 351 705 
 
 State, etc., v. Phelps, 144 Wis. 
 1; 128 N.W. 1041 699 
 
 State, etc., v. R. R. Comm., 
 137 Wis. 80; 117 N. W. 846 699 
 
 State, etc., v. Redmon, 134 
 Wis. 89; 114 N. W. 137; 14 
 L. R. A. (N. S.) 229; 126 
 Am. St. Rep. 1003 694 
 
 State, etc., v. Ryan, 99 Wis. 
 123; 74 N. W. 544 699 
 
 State ex rel. v. Trustees, 138 
 Wis. 133; 119 N. W. 806; 20 
 L. R. A. (N. S.) 1175 677 
 
 State ex rel. v. Wharton, 117 
 Wis. 558; 94 N. W. 359. .. 677 
 
 State Tax on Foreign-held 
 Bonds, 15 Wall. 300; 21 L. 
 Ed. 179 751 
 
 Statham v. Galloways Limit- 
 ed, 2 W. C. C. 149 98 
 
 Stearns v. United States, 2 
 Paine, 300 802 
 
 Steel v. Cammell, Laird & 
 Co. (1905), 7 W. C. C. 9.. 67 
 
 Steinkamp v. Cincinnati, 54 
 Ohio St. 295 783 
 
 Steinweg v. Erie Ry. Co., 43 
 N. Y. 123, 127 643 
 
 Stephens, Petitioner, 4 Gray, 
 559 802 
 
 Stephens v. Dunbridge Iron- 
 works Co. (1904), 6 W. C. 
 C. 48 8 
 
 Stewart v. Wilsons & Clyne 
 Company (1903), 5 F. 120 55 
 
 Page 
 Stoeckman v. T. H. & R. R. 
 
 Co., 15 Mo. App. 503 798 
 
 Strickley v. Highland Boy 
 
 Mining Co., 200 U. S. 527; 
 
 26 Sup. Ct. 301; 50 L. Ed. 
 
 581 725 
 
 Stroble v. Railroad, 70 la. 
 
 555 831 
 
 Stuart v. Hawley, 22 Barb. 
 
 619 643 
 
 Stuart v. Nixon & Bruce 
 
 (1901), 3 W. C. C. 1 251 
 
 Stull v. DeMattos, 23 Wash. 
 
 71 ; 62 Pac. 451; 51 L. R. A. 
 
 892 750 
 
 Sudell v. Blackburn Corpora- 
 tion (1910), 3 B. W. C. C. 
 
 227 119 
 
 Suleman v. Owners of the 
 
 "Ben Lomond," (1909) 2 
 
 B. W. C. C. 499 .. . 280 
 
 Taff Vale Railway Co. v. 
 
 Lane (1910), 3 B. W. C. C. 
 
 297 484 
 
 Tamworth Colliery Co. v. 
 
 Hall (1911), 4 B. W. C. C. 
 
 313 318 
 
 Taylor v. Jones (1907), 1 B. 
 
 W. C. C. 3 81 
 
 Taylor v. Porter, 4 Hill. 140, 
 
 145 618 
 
 Taylor v. Southern Railway, 
 
 178 Fed. Rep. 380 831 
 
 Teal v. Felton, 12 How. 292 
 
 799, 800 
 Telegraph Co. v. James, 162 
 
 U. S. 650 825 
 
 Thackway v. Connelly & 
 
 Sons (1909), 3 B. W. C. C. 
 
 37 400 
 
 Thomas v. Fairbairn, Lawson
 
 Ixii 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 & Co. (1911), 4 B. W. C. C. 
 
 195 236 
 
 Thomas v. Quartermaine, 18 
 
 Q. B. D. 685 804, 820 
 
 Thompson v. Ashington Coal 
 
 Co. (1901), 3 W. C. C. 
 
 21 69 
 
 Thompson v. R. W. Gould & 
 
 Co. (1910), A. C. 409; 103 
 
 L. T. 81; 3 B. W. C. C. 392 397 
 Thomson v. Flemington Coal 
 
 Co. (1911), 48 Scotch L. R. 
 
 740; 4 B. W. C. C. 406.... 91 
 Tibbs v. Watts, Blake, Bearne 
 
 & Co., 2 B. W. C. C. 164 
 
 361, 363 
 Timmins v. Leeds Forge Co., 
 
 16 T. L. R. 521 56 
 
 Timmins v. Leeds Forge Co., . 
 
 2 W. C. C. 10 57 
 
 Tomalin v. S. Pearson & Son 
 
 (1909), 100 L. T. 685; 2 B. 
 
 W. C. C. 1 45 
 
 Trade Mark Cases, 100 U. S. 
 
 96 826 
 
 Traynor v. Robert Addie & 
 
 Sons (1910), 48 Scotch L. 
 
 R. 820; 4 B. W. C. C. 357 . . 92 
 Trodden v. J. McLennard & 
 
 Sons (1911), 4 B. W. C. C. 
 
 190 88 
 
 Tullis v. Lake Erie, etc., R. 
 
 R. Co., 175 U.S. 348.. 810, 
 
 820, 823, 829, 834 
 Turner v. Brooks & Doxey 
 
 (1909), 3 B. W. C. C. 22. . 240 
 Turner v. G. Bell & Sons 
 
 (1910), 4B. W. C. C. 63.. 453 
 Turner & Others v. Miller & 
 
 Richards (1910), 3 B. W. C. 
 
 C. 305 316 
 
 Tutton v. Owners of Steam- 
 ship "Majestic" (1909), 
 
 Page 
 
 100 L. T. 644; 2 B. W. C. 
 C. 346 386 
 
 U 
 
 Union Bridge Co. v. United 
 
 States, 204 U. S. 364 816 
 
 Union Pacific R. R. Co. v. 
 
 Rollin, 5 Kan. 167 819 
 
 United Collieries v. Hendry 
 
 (1909), 101 L. T. 129; A. C. 
 
 (H. L.) 383; 2 B. W. C. C. 
 
 308 322 
 
 United Collieries v. King 
 
 (1909), 47 Scotch L. R. 41; 
 
 3B. W. C. C. 546 376 
 
 United States v. Barnes, 222 
 
 U. S. 513 848 
 
 United States v. Burlington, 
 
 etc., Ferry Co., 21 Fed. 
 
 Rep. 331, 340 833 
 
 United States v. Chicago, etc. 
 
 Ry. Co., 149 Fed. Rep. 486, 
 
 490 835 
 
 United States v. Col. & N. W. 
 
 R. R. Co., 157 Fed. Rep. 
 
 321 833,835 
 
 United States v. Combs, 12 
 
 Pet. 72 810,817 
 
 United States v. Delaware & 
 
 Hudson Co., 213 U. S. 366 
 
 796, 804, 815, 816, 823 
 United States v. Fisher, 2 
 
 Cranch, 358 832 
 
 United States v. Illinois Cent. 
 
 R. R., 156 Fed. Rep. 182, 
 
 193 835 
 
 United States v. Knight, 156 
 
 U. S. 1 807,824,826 
 
 United States v. Lathrop, 17 
 
 Johns. (N. Y.) 4, 8 801 
 
 United States v. Southern 
 
 Ry. Co., 170 Fed. Rep. 
 
 1014 . . .836
 
 TABLE OF CASES REPORTED AND CITED 
 
 Ixiii 
 
 Page 
 
 United States v. Southern Ry. 
 Co., 164 Fed. Rep. 351 .... 826 
 
 United States v. St. Louis, 
 etc., R. Co., 154 Fed. 516.. 835 
 
 United States v. Wheeling, 
 etc., R. R. Co., 167 Fed. 
 Rep. 198 835 
 
 United States v. Williams, 
 194 U. S. 295 801 
 
 United States Mutual Acci- 
 dent Ins. Ass'n v. Barry 
 (1888), 131 U. S. 100 55 
 
 Upper Forest & Western Steel 
 & Tinplate Co. v. Thomas 
 (1909),2B.W.C.C.414.. 471 
 
 Upper Forest & Worcester 
 Steel & Tinplate Co. v. 
 Grey (1910), 3 B. W. C. C. 
 424 .. . 279 
 
 Valarnio v. Thompson, 7 N. 
 
 Y. 579 800 
 
 Vamplew & Others v. Park- 
 gate Iron & Steel Co. 
 
 (1903), 88 L. T. 756; 5 W. 
 
 C. C. 114 118 
 
 Van Horn v. People, 46 Mich. 
 
 183; 9 N. W. 246; 41 Am. 
 
 Rep. 159 749 
 
 Van Slyke v. Insurance Co., 
 
 39 Wis. 390; 20 Am. Rep. 
 
 50 680 
 
 Varesick v. British Columbia 
 
 Copper Co. (1906), 12 B. C. 
 
 286; 1 B. W. C. C. 446. ... 321 
 Villar v. Gilbey (1907), A. C. 
 
 139 320 
 
 W 
 
 Wabash R. R. v. Illinois, 118 
 U.S. 557 824,835 
 
 Page 
 Wabash R. Co. v. United 
 
 States, 168 Fed. Rep. 1 .811, 835 
 Wadsworth v. Union Pacific 
 
 Ry. Co., 18 Colo. 600 614 
 
 Waites v. Franco-British 
 
 Exhibition (Incorporated) 
 
 (1909), 2 B. W. C. C. 199. 177 
 Walla Walla v. Ferdon, 21 
 
 Wash. 308; 57 Pac. 796. . . 750 
 Walker v. Crystal Palace 
 
 Football Club (1909), 101 
 
 L.T.645;3B.W.C. C. 53. 120 
 Walker v. Hockney Brothers 
 
 (1909), 2 B. W. C. C. 20. . 61 
 Walker v. Lilleshall Coal Co. 
 
 (1900), 81 L. T. 769; 2 W. 
 
 C. C. 7 69 
 
 Walker v. Mullins (1908), 42 
 
 Irish L. T. 168; 1 B. W. C. 
 
 C. 211 102 
 
 Walker v. Murrays (1911), 48 
 
 Scotch L. R. 741; 4 B. W. 
 
 C. C. 409 56 
 
 Walsh v. Hayes (1909), 43 
 
 Irish L. T. 114; 2 B. W. C. 
 
 C. 202 180 
 
 Walsh v. N. Y. & N. E. R. R. 
 
 Co., 160 Mass. 571. .. .790, 798 
 Walters v. Stavely Coal & 
 
 Iron Co. (1911), 105 L. T. 
 
 119; 4 B. W. C. C. 303.... 73 
 Warby v. Plaistowe & Co. 
 
 (1910), 4B. W. C. C. 67.. 384 
 Ward v. Jenkins, 10 Mete. 
 
 588 798 
 
 Ward v. London & North 
 
 Western Ry. Co. (1901), 3 
 
 W. C. C. 192 280 
 
 Ward v. Maryland, 12 Wall. 
 
 418 824 
 
 Ward v. Miles (1911), 4 B. W. 
 
 C. C. 182 278 
 
 Warncken v. Richard More-
 
 Ixiv 
 
 TABLE OF CASES REPORTED AND CITED 
 
 Page 
 
 land & Son (1908), 100 
 
 L. T. 12; 2 B. W. C. C. 350 386 
 Warner v. Couchman (1911), 
 
 1 K. B. 351; 4 B. W. C. C. 
 
 32 54 
 
 Watson v. Nutterley Co. 
 
 (1902), 5 W. C. C. 51 132 
 
 Watson v. Sherwood (1909), 
 
 2B. W. C. C. 462 82 
 
 Watson v. St. Louis, I. M. & 
 
 S. Ry. Co., 169 Fed. Rep. 
 
 942 810,813,832,833 
 
 Webb v. R. W. & O. R. R. 
 
 Co., 49 N. Y. 420 643 
 
 Weighill v. South Heaton 
 
 Coal Co. (1911), 4 B. W. 
 
 C. C. 141 130 
 
 Wells v. Cardiff Steam Col- 
 lieries Co. (1909), 3 B. W. 
 
 C. C. 104 405 
 
 Welton v. Missouri, 91 U. S. 
 
 280 800 
 
 Western Union Telegraph 
 
 Co. v. Commercial Milling 
 
 Co., 218 U. S. 406. .776, 
 
 805, 841 
 Wharf, Hays, Proprietors of, 
 
 v. Brown (1909), 3 B. W. 
 
 C. C. 84 385 
 
 Whelan v. Great Northern 
 
 Steam Fishing Co. (1909), 
 
 100 L. T. 912; 2 B. W. C. 
 
 C. 235 114 
 
 Whelan v. Moore (1909), 43 
 
 Irish L. T. 205; 2 B. W. C. 
 
 C. 114 100 
 
 Whelan v. Washington Lum- 
 ber Co., 41 Wash. 153; 83 
 
 Pac. 98; 111 Am. St. Rep. 
 
 1006 734 
 
 Whitbread v. Arnold (1908), 
 
 99 L. T. 103 ;1 B. W. C. C. 
 
 317 . . 75 
 
 White v. Sheepwash (1910), 
 
 3B. W. C. C. 382 70 
 
 White & Sons v. Harris (1910), 
 
 4B. W. C. C. 39 239 
 
 Whitehead v. Reader (1901), 
 
 3 W. C. C. 40 91 
 
 Whitehead v. Reader (1901), 
 
 2 K. B. 48 94 
 
 Wilkes (or Wickes) v. Dowell 
 
 & Co. (1905), 2 K. B. 225; 
 
 7. W. C. C. 14 58 
 
 Williams v. Duncan (1908), 1 
 
 W. C. C. 123 68 
 
 Williams v. Fears, 179 U. S. 
 
 270 832 
 
 Williams v. Ocean Coal Co. 
 
 (1907), 97 L. T. 150; 9 W. 
 
 C. C. 44 320 
 
 Williams v. Vauxhall Colliery 
 
 Co. (1907), 23 T. L. R. 591; 
 
 9 W. C. C. 120 208 
 
 Williams v. The Wigan Coal 
 
 & Iron Co. (1909), 3 B. W. 
 
 C. C. 65 97 
 
 Williams v. The Wynnstay 
 
 Colliers (1910), 3 B. W. C. 
 
 C. 473 253 
 
 Willoughby v. Great West- 
 ern Ry. Co. (1904), 6 W. C. 
 
 C. 28 64 
 
 Wilmington Mining Co. v. 
 
 Fulton, 205 U. S. 60, 74. .. 834 
 Wilson v. Kelly & Others 
 
 (1909), (Supreme Court of 
 
 British Columbia), 14 B. C. 
 
 437; 3 B. W. C. C. 599.... 551 
 Wilson v. Laing (1909), 46 
 
 Scotch L. R. 843; 2 B. W. 
 
 C. C. 118 100 
 
 Wilson v. Southern Ry. Co., 
 
 172 Fed. Rep. 478 800 
 
 Winfree v. Northern Pac. Ry. 
 
 Co., 173 Fed. Rep. 65 833
 
 Ixv 
 
 Page 
 Wisconsin Industrial School 
 
 for Girls v. Clark County, 
 
 103 Wis. 651; 79 N. W. 422 699 
 Woodbury, In re, 98 Fed. 
 
 Rep. 833 802 
 
 Wooden v. Western N. Y., & 
 
 P. R. Co., 126 N. Y. 10... 47 
 Wright v. Hart, 182 N. Y. 
 
 330 626 
 
 Wright v. Kerrigan (1911), 45 
 
 Irish L. T. 82; 4 B. W. C. 
 
 C. 432 401 
 
 Wynehamer v. People, 13 
 
 N. Y. 378. . . 618 
 
 Yates v. South Kirby, Feath- 
 erstone & Hemsworth Col- 
 
 Page 
 
 lieries (1910), 103 L. T. 
 
 170; 3 B. W. C. C. 418 ... 63 
 Yick Wo v. Hopkins, 118 
 
 U. S. 356; 6 Sup. Ct. 1064; 
 
 30 L. Ed. 220 737 
 
 Ystradowen Colliery Co. v. 
 
 Griffiths (1909), 100 L. T. 
 
 869; 2 B. W. C. C. 357.... 65 
 
 Zeigler v. S. & N. Ala. R. R. 
 
 Co., 58 Ala. 594 616, 622 
 
 Ziemer v. Crucible Steel Co., 
 
 99 App. Div. 169; 90 Supp. 
 
 962 45 
 
 Zikos v. Oregon R. R. & Nav. 
 
 Co., 179 Fed. 893. .813, 
 
 827, 831, 832, 833
 
 BRADBURY'S 
 
 WORKMEN'S COMPENSATION AND 
 STATE INSURANCE LAW 
 
 CHAPTER I 
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 
 
 Page Page 
 
 INTRODUCTION 1 NEW HAMPSHIRE 26 
 
 CALIFORNIA 8 NEW JERSEY 27 
 
 ILLINOIS 10 OHIO 30 
 
 KANSAS 13 RHODE ISLAND 33 
 
 MASSACHUSETTS 17 WASHINGTON 34 
 
 MICHIGAN 22 WISCONSIN 36 
 
 NEVADA 24 
 
 INTRODUCTION 
 
 1. Abolition of defenses. 
 
 In paving the way for the adoption of compensation 
 acts the first thing necessary to be done was to abolish 
 the defenses of assumption of risk and negligence of 
 fellow servant, and to either abolish entirely, or to 
 modify greatly, the defense of contributory negligence. 
 This has been done chiefly to compel employers to ac- 
 cept the compensation principle. 1 After the decision of 
 
 1 It is true that all three of these defenses had been greatly modi- 
 fied in several States, and one or more of them had been abolished 
 entirely in some jurisdictions prior to the enactment of compensa- 
 tion statutes. But it was not until the compensation feature was 
 
 1
 
 2 BRADBURY S WORKMEN S COMPENSATION LAW 
 Introduction 
 
 the New York Court of Appeals in the case of Ives v. 
 South Buffalo Ry. Co., 201 N. Y. 271, : that a mandatory 
 compensation law wag unconstitutional, the other States 
 passed optional statutes. Then, to induce employers 
 to come under the statutes, provision was made that 
 their common-law defenses were eliminated unless they 
 did adopt the compensation principle. Against em- 
 ployes, however, who refuse to follow their employers 
 in accepting the compensation principle the common- 
 law defenses are, in some of the statutes, revived in 
 favor of their employers. 
 
 The method has been to abolish the first two en- 
 tirely. As to contributory negligence, some of the acts 
 go so far as to abolish absolutely that defense also. 
 But most of the statutes make the willful negligence, 
 or the willful act of the servant, sufficient ground for 
 denying to him the right of compensation, or even 
 damages, whenever the common-law right of action is 
 retained at all. 
 
 Several of the acts provide that when the injury is 
 caused by intoxication the employe shall not receive 
 compensation. Others modify these provisions slightly, 
 but the general trend of the various acts is as given 
 above. 
 
 The net result has been an entire shifting of the bur- 
 den of proof under the compensation feature of the 
 statutes. Formerly the employ6 was compelled to show 
 
 introduced as an alternative whereby some limit could be placed 
 on the amount of the recovery that the lawmakers generally 
 deemed it the part of wisdom to abolish entirely the fellow-servant 
 and assumption-of-risk rules and to modify almost to the point 
 of abolition the defense of contributory negligence. 
 1 This decision is printed in full in Chapter XXXVIII.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 3 
 Introduction 
 
 negligence on the part of the master as the foundation 
 of his action, and in many jurisdictions, until recently, 
 that he, the employe, was free from contributory neg- 
 ligence. 
 
 Later, in many jurisdictions (and in some jurisdic- 
 tions at all times) the master, as a defense, was com- 
 pelled to show affirmatively that the servant's injury 
 was caused by the servant's own negligence. 
 
 The compensation acts abolished all these burdens of 
 proof by starting with the assumption, in all cases, 
 that neither party was guilty of negligence that the injury 
 was the inevitable result of the occupation in which the 
 employe was engaged. Then the law said to the master : 
 "If you would escape this presumption you must show 
 more than common negligence on the part of the serv- 
 ant; you must show that the injury to the servant was 
 the result of a willful act or of his intoxication." It 
 also said to the servant: "You must bear a part of this 
 inevitable loss by accepting less than you could have 
 earned if the accident had not happened, unless you 
 can show that the master was guilty of something more 
 than ordinary negligence. If you can prove that the 
 master disregarded regulations prescribed by law re- 
 lating to safeguards, or was willfully or grossly negli- 
 gent, you may recover, not compensation merely, but 
 also damages because of your suffering." 
 
 This subject is discussed under the particular pro- 
 visions of the statute of each State. 
 
 2. Election of remedies. 1 
 
 There is more variety in the various compensation 
 
 1 Of course there is a clear distinction between an election of 
 remedies by an employe after an accident has happened, and the
 
 4 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Introduction 
 
 acts on the question of election of remedies than there 
 is on the topic of abolition of defenses. Some of the 
 statutes give the employe 1 an absolute right after an 
 accident has happened to determine whether he will 
 demand " damages" or " compensation." A few of the 
 laws give him a right to pursue both remedies at once; 
 but in such cases an actual recovery under one form of 
 action precludes further proceedings in the other. 1 In 
 several of the acts "damages" may be recovered in 
 cases where an employer is guilty of a violation of 
 some specific statute and the injury is caused thereby. 
 Some of them go so far as to permit the recovery of 
 "double damages" or "double compensation," when 
 the injury is caused by a disregard of a statute relating 
 to safety devices. A considerable number of the laws, 
 however, provide that where the employer has brought 
 himself within the terms of the statute and the em- 
 ploye" has not expressed his election not to be bound by 
 
 election which both the employer and the employe" may exercise as 
 to whether they, or either of them, will come within the provisions 
 of the compensation features of the statute in any event. The 
 latter subject naturally comes under the topic: To WHOM THE ACT 
 APPLIES, which is discussed in Chapter II, post, page 39. In the 
 text of the present chapter is considered merely the election which 
 the employe" may make after the accident, presuming, of course, 
 that both employer and employe* have signified their intentions, in 
 proper legal form, to accept and be bound by the features of a par- 
 ticular statute relating to compensation. 
 
 1 It is not clear whether it is intended that the employe" may de- 
 mand both "damages" and "compensation" in one action, and 
 recover whichever the facts proved show he is entitled to receive, 
 or whether he must bring two actions. The solution of this question 
 doubtless depends on the practice, as to joinder of causes of action 
 in one complaint or declaration, in the particular jurisdiction where 
 the claim is made.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 5 
 Introduction 
 
 the law, that the right to " compensation" shall be 
 exclusive of all other rights for remuneration because 
 of injuries. 
 
 The constitutional question of the right of the legis- 
 lature to compel the employ^ to accept and the em- 
 ployer to pay compensation for all injuries, irrespective 
 of negligence, has had an important bearing on this 
 subject. Since the decision of the New York Court of 
 Appeals in the case of Ives v. South Buffalo Ry. Co., 201 
 N. Y. 271, it has been feared that the power of the 
 legislature to absolutely compel an employer to pay 
 or an employe to accept compensation for an injury 
 in all cases, was doubtful, at least. Some of the law- 
 makers, therefore, have been rather disinclined to 
 abolish the right to sue for " damages" and have so 
 worded the statutes as to leave it to the employer and 
 employe to elect to pay, or to accept, compensation, 
 upon failure of either to take some affirmative action in- 
 dicating a rejection of the principle. Then to still fur- 
 ther escape the constitutional problem, or out of a feel- 
 ing of tenderness for the employe, the legislators, in 
 some instances, have still further permitted the work- 
 man to elect, by allowing him to demand both " dam- 
 ages" and " compensation," but limiting the recovery to 
 one or the other. In some instances a workman while 
 employed in his master's business is injured through the 
 wrong of a third party. Suppose, for example, a driver 
 of A's team is injured by the negligence of B, who is 
 operating an automobile. The driver could recover 
 compensation from A. He would also have a cause of 
 action against B, for damages. Usually, under the 
 various statutes, he may elect which remedy to pursue. 
 Generally speaking the employe 1 can only have one
 
 6 BRADBURY S WORKMEN S COMPENSATION LAW 
 Introduction 
 
 recovery of damages or compensation, for a single in- 
 jury. But under a set of circumstances such as de- 
 scribed above, where the employe recovers compensa- 
 tion from his employer, the latter is subrogated to the 
 rights of the workman as against the third person who 
 caused the injury. 
 
 Of course it is a well-recognized general rule of 
 law that where two or more remedies are open to a 
 person to right a particular wrong, that pursuit of one 
 constitutes such an election as will preclude the person 
 from subsequently pursuing the other. The same rule 
 applies generally to compensation laws, in the absence 
 of special statutory regulation. By the terms of the 
 British Compensation Act if a workman sues at com- 
 mon law and is defeated he can ask the court to 
 immediately assess compensation. Apart from this 
 special provision the doctrine of estoppel by election 
 applies. Thus where a claim for compensation was 
 refused by the arbitrator under the Compensation Act 
 of 1897, it was held that this was a bar to a subsequent 
 action at common law by the workman for damages for 
 personal injuries sustained in the accident. Burton v. 
 Chapel Coal Company (1909), 46 Scotch L. R. 375; 2 
 B. W. C. C. 120. Where a workman has recovered 
 compensation from his employers, he is not entitled to 
 maintain an action against a person other than the 
 employer, the negligence of whose servant has caused 
 the injury for which complaint is made, even though 
 the workman would be entitled to more by way of dam- 
 ages than he had received by way of compensation. 
 Mahomed v. Maunsell (1907), 1 B. W. C. C. 269. Where 
 a workman who had received injury on the premises of 
 a person other than those of his employer and entered
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 7 
 Introduction 
 
 into an agreement with the owner of the premises to 
 satisfy any claim he had against them, in consideration 
 of such person paying his wages during incapacity for a 
 period not to exceed six months, together with his 
 doctor's bill, it was held that this was a recovery of 
 damages which precluded the workman from claiming 
 compensation from his employer, as the recovery of 
 such damages need not necessarily be by legal pro- 
 ceedings. Page v. Burtwell (1908), 1 B. W. C. C. 267. 
 A workman employed by contractors was knocked 
 down and injured by a London County Council tram- 
 car. He received payments from his employers and 
 signed receipts which stated that the money was paid 
 as compensation under the act. Subsequently he re- 
 paid these moneys and commenced an action against 
 the London County Council. He then said that he had 
 not read or understood the papers which he had signed. 
 The County Court judge nonsuited the workman on 
 the ground that he was estopped by the receipts. It 
 was held on appeal in the King's Bench Division that 
 while prima facie the man was bound by the receipt 
 signed, his real intention in signing must be considered. 
 If he did not read or understand the document there 
 might not be an estoppel. It was held that the case 
 should have been left to the jury for the determination 
 of the question of fact whether the man understood the 
 nature and effect of the receipts when he signed them. 
 Huckle v. The London County Council (1910), 3 B. W. 
 C. C. 536. An option to accept compensation under 
 the act, instead of damages, exercised on behalf of an in- 
 fant, will be set aside if it be not for the infant's benefit. 
 Ford v. Wren & Dunham (1903), 5 W. C. C. 48. An 
 option exercised by a person on behalf of an infant is
 
 8 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 not binding on the infant unless it be for his benefit. 
 Stephens v. Dunbridge Ironworks Co. (1904), 6 W. C. C. 
 48. In the last-mentioned case relatives of the infant 
 had made claim for compensation and this was paid to 
 the infant, who signed a release in full. It was held 
 that this did not debar the infant from maintaining a 
 common-law action for damages. 
 
 In the pages which follow, the texts of the various 
 statutes in the different States have been reprinted, 
 with such elucidations, cross references and explana- 
 tions as have been deemed necessary to give a clear 
 understanding of the statutory provisions on this sub- 
 ject in each commonwealth. 
 
 CALIFORNIA 
 (L. 1911, c. 399) 
 
 1. Abolition of defenses. 
 
 " 1. In any action to recover damages for a per- 
 sonal injury sustained within this State by an employe 
 while engaged in the line of his duty or the course 
 of his employment as such, or for death resulting from 
 personal injury so sustained, in which recovery is 
 sought upon the ground of want of ordinary or rea- 
 sonable care of the employer, or of any officer, agent 
 or servant of the employer, the fact that such employe* 
 may have been guilty of contributory negligence shall 
 not bar a recovery therein where his contributory 
 negligence was slight and that of the employer was 
 gross, in comparison, but the damages may be dimin- 
 ished by the jury in proportion to the amount of 
 negligence attributable to such employe", and it shall 
 be conclusively presumed that such employe" was not
 
 ABOLITION OF DEFENSES) ELECTION OF EEMEDIES 9 
 California 
 
 guilty of contributory negligence in any case where 
 the violation of any statute enacted for the safety of 
 employes contributed to such employees injury; and 
 it shall not be a defense: 
 
 "(1) That the employ 6 either expressly or im- 
 pliedly assumed the risk of the hazard complained 
 of. 
 
 "(2) That the injury or death was caused in 
 whole or in part by the want of ordinary or reason- 
 able care of a fellow servant. 
 
 " 2. No contract, rule or regulation, shall exempt 
 the employer from any of the provisions of the pre- 
 ceding section of this act." 
 
 2. Election of remedies. 
 
 The California Act gives an elective remedy to a 
 restricted extent only. The claim for " compensation," 
 as distinguished from " damages," is the exclusive 
 remedy of an employ^ whose employer has brought 
 himself within the terms of the act, " except that where 
 the injury was caused by the personal gross negligence 
 or willful misconduct of the employer, or by reason of 
 his violation of any statute designed for the protection 
 of employes from bodily injury, the employe may, at 
 his option, either claim compensation under the act, or 
 maintain an action for damages therefor." See 3 (3), 
 last paragraph, in Chapter II, post, page 132. 
 
 Also, if the accident happens under circumstances 
 which make the Act inapplicable, the employ^ may 
 pursue the common-law remedy with the ordinary 
 common-law defenses eliminated. See 3 (3) of the 
 act, last sentence, in Chapter II, post, page 133, in con- 
 nection with 1 of the Act, in this chapter.
 
 10 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 1. Abolition of defenses. 
 
 " 1. Be it enacted by the people of the State of Illi- 
 nois, represented in the General Assembly: That any 
 employer covered by the provisions of this Act in 
 this State may elect to provide and pay compensation 
 for injuries sustained by any employe arising out of 
 and in the course of the employment according to 
 the provisions of this Act, and thereby relieve him- 
 self from liability for the recovery of damages, ex- 
 cept as herein provided. If, however, any such 
 employer shall elect not to provide and pay the com- 
 pensation to any employ^ who has elected to accept 
 the provisions of this Act, according to the pro- 
 visions of this Act he shall not escape liability for 
 injuries sustained by such employe" arising out of 
 and in the course of his employment because 
 
 "1. The employe" assumed the risks of the em- 
 ployer's business. 
 
 "2. The injury or death was caused in whole or 
 in part by the negligence of a fellow servant. 
 
 "3. The injury or death was proximately caused 
 by the contributory negligence of the employe", but 
 such contributory negligence shall be considered by 
 the jury in reducing the amount of damages." 
 
 Under a strict interpretation of the Illinois Act it 
 has been argued that there might possibly be one con- 
 tingency in which the common-law defenses of the 
 employer would not be abolished, even though the 
 employer should elect not to adopt the compensation 
 principle. In the first paragraph of 1, above, it is 
 provided that if "any such employer shall elect not to
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 11 
 
 Illinois 
 
 provide and pay the compensation to any employe who 
 has elected to accept the provisions of this Act, according 
 to the provisions of the Act he shall not escape lia- 
 bility," etc. As already pointed out the employer has 
 the first and basic election as to whether or not he will 
 accept the compensation doctrine. If the employer 
 should elect not to accept the compensation principle 
 his employes would be powerless to bring either their 
 employer or themselves under the new law. In such a 
 case, therefore, the employes would, in practical effect, 
 have no election whatever. As a practical matter, 
 therefore, the employes cannot elect "to accept the 
 provisions of the Act," as to an employer who has al- 
 ready elected not to accept such provisions. At least 
 such election by an employe under the circumstances 
 cited would have no practical effect, unless it would be 
 the abolition of the common-law defenses of the employer. 
 The author is of the opinion that it must be assumed 
 that the legislature had this condition of affairs in 
 mind when it passed the Act and did not do a vain 
 thing in adopting the language quoted. The legisla- 
 ture of course knew that it had given to the employer 
 the first election. It knew that unless an employer 
 elected to adopt the compensation principle the em- 
 ployes of such employer could not recover compensa- 
 tion, whatever they might do. When, therefore, the 
 legislature under these circumstances said that if the 
 employer should not elect to pay compensation and the 
 employes of such employer should nevertheless " elect" 
 to adopt the compensation principle, it seems clear 
 that the legislature intended to abolish the common- 
 law defenses of an employer who refused to pay com- 
 pensation as to all employe's who offered to be bound
 
 Illinois 
 
 by the provisions of the new law by expressing their 
 election to adopt the compensation principle. Few 
 would have the hardihood to argue that the legisla- 
 ture did not intend to bring about this result. It does 
 no violence to the language of the Act to assert that 
 this meaning can easily be spelled out of the words 
 which are therein found. 
 
 2. Election of remedies. 
 
 The Illinois Act makes the right to "compensation" 
 exclusive in cases to which it applies. If an employer 
 does not bring himself within the provisions of the act 
 then the common-law defenses are eliminated as to 
 him. See 1, above. 
 
 Furthermore, if the injury is caused by the " inten- 
 tional omission of the employer to comply with statu- 
 tory safety regulations, nothing in the act shall affect 
 the civil liability of the employer." See 3, below. 
 
 " 3. No common-law or statutory right to re- 
 cover damages for injury or death sustained by any 
 employe" while engaged in the line of his duty as such 
 employe" other than the compensation herein provided 
 shall be available to any employe" who has accepted 
 the provisions of this Act or to any one wholly or 
 partially dependent upon him or legally responsible 
 for his estate: Provided, that when the injury to 
 the employe" was caused by the intentional omission 
 of the employer, to comply with statutory safety 
 regulations, nothing in this Act shall affect the civil 
 liability of the employer. If the employer is a part- 
 nership, such omission must be that of one of the 
 partners thereof, and if a corporation, that of any 
 elective officer thereof."
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 13 
 
 Kansas 
 
 If the employe has a right to recover either " dam- 
 ages" or " compensation " he may take proceedings to 
 recover both, but a recovery under one remedy ex- 
 hausts his rights. 17 and 18. See Chapter XX, 
 post. See also 23)^. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 1. Abolition of defenses. 
 
 " 46. In any action to recover damages for a 
 personal injury sustained within this State by an em- 
 ploye (entitled to come within the provisions of this 
 act) while engaged in the line of his duty as such or for 
 death resulting from personal injury so sustained, in 
 which recovery is sought upon the ground of want of 
 due care of the employer or of any officer, agent or 
 servant of the employer, where such employer is 
 within the provisions hereof, it shall not be a defense 
 to any employer (as herein in this act defined) who 
 shall not have elected, as hereinbefore provided, to 
 come within the provisions of this act: (a) That the 
 employe either expressly or impliedly assumed the 
 risk of the hazard complained of: (6) that the injury or 
 death was caused in whole or in part by the want of 
 due care of a fellow servant; (c) that such employe 
 was guilty of contributory negligence but such con- 
 tributory negligence of said employe shall be consid- 
 ered by the jury in assessing the amount of recovery. 
 
 " 47. In an action to recover damages for a per- 
 sonal injury sustained within this State by an employe 
 (entitled to come within the provisions of this act) 
 while engaged in the line of his duty as such or for 
 death resulting from personal injury so sustained in 
 which recovery is sought upon the ground of want of 
 due care of the employer or of any officer, agent or
 
 14 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 servant of the employer, and where such employer has 
 elected to come and is within the provisions of this 
 act as hereinbefore provided, it shall be a defense for 
 such employer in all cases where said employe has 
 elected not to come within the provisions of this act; 
 (a) That the employe* either expressly or impliedly 
 assumed the risk of the hazard complained of; (6) that 
 the injury or death was caused in whole or in part by 
 the want of due care of a fellow servant; (c) that said 
 employe was guilty of contributory negligence; pro- 
 vided, however, that none of these defenses shall be 
 available where the injury was caused by the willful 
 or gross negligence of such employer, or of any man- 
 aging officer, or managing agent of said employer, or 
 where under the law existing at the time of the death 
 or injury such defenses are not available." 
 
 As to any employer who might bring himself within 
 the terms of the Compensation Act and fails to do so, 
 the common-law defenses founded on the assumption- 
 of-risk and the fellow-servant doctrines are entirely 
 eliminated. In such a case contributory negligence is 
 not a complete defense in any case, but may be con- 
 sidered by the jury in the assessment of damages. 
 
 If the employer brings himself within the terms of 
 the act and the employe refuses to be bound by the 
 act, then all the common-law defenses are available to 
 the employer, except in cases of willful or gross negli- 
 gence on the part of the employer, or any managing 
 officer or managing agent thereof, "or where under the 
 law existing at the time of death or injury such de- 
 fenses are not available." 
 
 The foregoing provision of 47 that even where the 
 employer has elected to come within the provisions of
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 15 
 
 Kansas 
 
 the Compensation Act and the employe has refused to 
 do so, the employer may still be precluded from setting 
 up the common-law defenses, when the injury is caused 
 by the willful or gross negligence of the employer "or 
 any managing officer, or managing agent of said em- 
 ployer," leaves the door open for much speculations 
 to when the employer, in any given cases, may feel 
 assured that his liability is measured by the compensa- 
 tion feature of the statute, or that he may save his 
 common-law defenses by showing a willingness to pay 
 compensation to his workmen. It is impossible to de- 
 termine in advance how this provision will work out 
 in practice. For example, when a case is brought to 
 trial, at just what point does the employer learn, for 
 the first time, that he will not be permitted to introduce 
 evidence establishing the common-law defenses? Is 
 this question decided in the first instance by the court 
 or by the jury? Does the court say, after the plaintiff 
 has put in his evidence, that the negligence of the 
 master is willful, or gross, and, therefore, evidence of 
 the common-law defenses will not be received? Ob- 
 viously this practice would not do, as this would be 
 trying and deciding this particular question on ex parte 
 testimony. Must, then, the question be reserved until 
 all the evidence is in? If so, who then decides it? Will 
 the trial judge order the evidence of such defenses 
 stricken out and direct the jury to disregard it, upon 
 the judge's determination that the negligence of the 
 master was willful or gross? Or will the trial judge in- 
 struct the jury that if they find the employer to have 
 been willfully or grossly negligent then they shall dis- 
 regard the evidence of the common-law defenses in 
 reaching their verdict?
 
 16 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 It is doubtful whether this portion of the Kansas Act 
 is wise, necessary or workable. 
 
 2. Election of remedies. 
 
 " 2. Reservation of liability for wrong or negligence 
 in certain cases. Where the injury was proximately 
 caused by the individual negligence, either of com- 
 mission or omission, of the employer, including such 
 negligence of the directors or of any managing officer 
 or managing agent of such employer if a corporation, 
 or of any of the partners if such employer is a partner- 
 ship, or of any member if such employer is an asso- 
 ciation, but excluding the negligence of competent 
 employes in the performance of their duties or of the 
 employer's duty delegated to them, the existing lia- 
 bility of the employer shall not be affected by this 
 act, but in such case the injured workman, or if death 
 results from such injury, his dependents as herein 
 denned, if they unanimously agree, otherwise his legal 
 representative, may elect between any right of action 
 against the employer upon such liability and the right 
 to compensation under this act." 
 
 The basic election as to whether the relations of em- 
 ployer and his employe" shall be governed by the com- 
 pensation principle in the act rests of course with the 
 employer. An employe" cannot bring his employer 
 within the terms of the act unless the employer first 
 elects to embrace its provisions. Even should both 
 elect to be bound by the compensation principle the 
 employe" may still select his remedy under certain cir- 
 cumstances set forth in 2 above. 
 
 The practical effect of the foregoing provision of 2, 
 it is believed, is to give the employe" a right to elect in
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 17 
 
 Massachusetts 
 
 virtually every case whether he will demand "compen- 
 sation" or " damages." 
 
 The workman may take proceedings against one 
 person to recover " damages" and against another to 
 recover "compensation" for the same injury, "but he 
 shall not be entitled to recover both damages and 
 compensation." 5 (a). See also Chapter III, post, 
 page 182, and Chapter XX, post, page 353. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 1. Abolition of defenses. 
 
 "Part I, 1. In an action to recover damages for 
 personal injury sustained by an employe in the course 
 of his employment, or for death resulting from per- 
 sonal injury so sustained, it shall not be a defense: 
 "1. That the employe was negligent. 
 "2. That the injury was caused by the negligence 
 
 of a fellow employe. 
 
 "3. That the employe" had assumed the risk of 
 
 the injury. 
 
 " 2. The provisions of section one shall not apply 
 to actions to recover damages for personal injuries 
 sustained by domestic servants and farm laborers. 
 
 " 3. The provisions of section one shall not apply 
 to actions to recover damages for personal injuries 
 sustained by employes of a subscriber. 
 
 The Massachusetts Act abolishes absolutely the 
 three common-law defenses as to employers who do 
 not elect to come under the compensation feature of 
 the statute, except in actions "by domestic servants 
 and farm laborers." The effect of this exception is 
 2
 
 18 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 that employers of domestic servants and farm laborers 
 may either elect to pay compensation or not as they 
 choose. But if they do not elect to adopt the compen- 
 sation principle there is no penalty attached, as there 
 is with other employers, namely, the abolition of the 
 common-law defenses. The judges of the Supreme 
 Court of Massachusetts have held that this exception 
 does not render the act unconstitutional. See opinion 
 in Chapter XXXVIII. 
 
 The judges, in the same opinion, also declared that, 
 "We construe clauses 1 and 2 in their reference to 
 negligence as meaning contributory negligence or 
 negligence on the part of a fellow servant which falls 
 short of the serious and willful misconduct which under 
 Part II, 2, will deprive an employe" of compensation. 
 So construed we think that the section is constitutional. 
 We neither express nor intimate any opinion whether 
 it would be unconstitutional if otherwise construed. 
 The rules of law relating to contributory negligence 
 and assumption of the risk and the effect of negligence 
 by a fellow servant were established by the courts, 
 not by the constitution, and the legislature may change 
 them or do away with them altogether as defenses (as 
 it has to some extent in the employers' liability act) 
 as in its wisdom in the exercise of powers intrusted to 
 it by the constitution it deems will be best for the 
 'good and welfare of this Commonwealth.' See Mis- 
 souri Pacific Railway v. Mackey, 127 U. S. 205; Min- 
 nesota Iron Co. v. Kline, 199 U. S. 593." 
 
 It would seem therefore that serious and willful 
 misconduct on the part of an employe would defeat 
 his cause of action against an employer in a common- 
 law action for damages, even though the employer
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 19 
 
 Massachusetts 
 
 should not elect to accept the compensation feature 
 of the statute. 
 
 2. Election of remedies. 
 
 "Part I, 4. The provisions of sections one hundred 
 and twenty-seven to one hundred and thirty-five, in- 
 clusive, and of one hundred and forty-one to one 
 hundred and forty-three, inclusive, of chapter five 
 hundred and fourteen of the acts of the year nineteen 
 hundred and nine, and of any acts in amendment 
 thereof, 1 shall not apply to employes of a subscriber 
 while this act is in effect. 
 
 " 5. An employe" of a subscriber shall be held to 
 have waived his right of action at common law to re- 
 cover damages for personal injuries if he shall not have 
 given his employer at the time of his contract of hire, 
 notice in writing that he claimed such right, or if the 
 contract of hire was made before the employer became 
 a subscriber, if the employe shall not have given the 
 said notice within thirty days of notice of such sub- 
 scription. An employe" who has given notice to his 
 employer that he claimed his right of action at com- 
 mon law may waive such claim by a notice in writing 
 which shall take effect five days after it is delivered 
 to the employer or his agent." 
 
 1 The statute referred to in 4 in the text is an employers' 
 liability act containing the provisions usually found in those 
 statutes prior to the enactment of workmen's compensation laws. 
 In this instance the act to which reference is made contains the 
 provisions permitting recovery in case of injuries causing death. 
 If, therefore, an employer, in Massachusetts, has exercised his 
 election to embrace the compensation principle and an employe" 
 of such employer has given the proper notice that he refuses to 
 accept compensation, the dependents of such an employe" cannot 
 recover from the employer any sum whatsoever because of the 
 death of such employe". 
 
 \
 
 20 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 "Part III, 15. Where the injury for which com- 
 pensation is payable under this act was caused under 
 circumstances creating a legal liability in some person 
 other than the subscriber to pay damages in respect 
 thereof, the employe may at his option proceed either 
 at law against that person to recover damages, or 
 against the association for compensation under this 
 act, but not against both, and if compensation be 
 paid under this act, the association may enforce in 
 the name of the employe, or in its own name and for 
 its own benefit, the liability of such other person." 
 
 "Part V, 1. If an employ 6 of a subscriber files 
 any claim with or accepts any payment from the 
 association on account of personal injury, or makes 
 any agreement, or submits any question to arbitration, 
 under this act, such action shall constitute a release to 
 the subscriber of all claims or demands at law, if any, 
 arising from the injury." 
 
 Of course an employe cannot elect to claim compen- 
 sation unless the employer has first elected to embrace 
 the compensation feature of the statute. Assuming 
 that the employer has so elected the employe* has only 
 one remedy, and that is for compensation, unless he 
 has given the notice required by Part I, 5, above. 
 
 Even if the injury is caused by the serious and will- 
 ful misconduct of the employer the employe* can re- 
 cover only " compensation," but in such a case the com- 
 pensation may be doubled under Part II, 3, of the 
 act, which is printed in Chapter II, post, page 146. 
 Some of the statutes give the employe" the right to 
 recover common-law "damages" when the injury is 
 caused by the serious and willful misconduct or negli- 
 gence of the employer, but the Massachusetts Act limits 
 the recovery in such cases to double compensation.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 21 
 
 Massachusetts 
 
 Serious consequences may result to the dependents 
 of the employe, should he give notice that he will not 
 be bound by the compensation feature of the statute 
 when his employer has taken the necessary steps to 
 bring himself within that feature. Under such cir- 
 cumstances the employer is not liable for damages in 
 case of injury causing the death of the employe". This 
 result comes from the provisions of the statute referred 
 to in Part I, 4, of the act (above) as construed by 
 the judges of the Supreme Court, passing on the con- 
 stitutionality of the Compensation Act. See opinion 
 in Chapter XXXVIII. 
 
 Section 15, of Part III, printed above, evidently 
 refers to cases where a liability exists in favor of a 
 workman as against a third person, not his employer. 
 For example, a workman might be employed on a 
 building where the employes of a number of employers 
 were engaged. He might be injured through the neg- 
 ligence of an employe of an employer other than his 
 own. In such a case he should have a common-law 
 cause of action for "damages" against the employer 
 of the workman whose negligence caused the injury. 
 He would also have a claim against his own employer 
 for compensation, if his own employer had embraced 
 the compensation features of the statute. Under 
 Part III, 15, and Part V, 1, above, the employe 
 can only enforce one remedy. So far as he is concerned 
 the enforcement of one waives the other. But in 
 cases where a common-law cause of action for " dam- 
 ages" exists and the Massachusetts Employes' Insur- 
 ance Association has paid compensation to the work- 
 man, such association can enforce the cause of action 
 for common-law damages against the person who is
 
 22 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 liable therefor. Doubtless a liability insurance com- 
 pany which has paid compensation under similar cir- 
 cumstances could also recover damages in all cases 
 where the Massachusetts Employe's' Insurance Asso- 
 ciation could enforce that remedy. See Part V, 3, as 
 am'd by L. 1912, c. 571. 
 
 The Act as originally passed provided in very general 
 terms that liability insurance companies issuing policies 
 in Massachusetts should be subject to all the regula- 
 tions and obligations imposed on the Massachusetts 
 Employes' Insurance Association. By the amendment 
 contained in Chapter 571 of the Laws of 1912, which 
 was approved by the Governor on May 10, 1912, it is 
 specifically provided that such liability insurance com- 
 panies shall be subject to the provisions of Parts I, II, 
 III and V and of 22 of Part IV of the Act, and shall 
 file with the Insurance Department its classifications 
 of risks and premiums relating thereto and any subse- 
 quent proposed classifications or premiums, none of 
 which shall take effect until approved by the Insurance 
 Commissioner. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 1. Abolition of defenses. 
 
 "PART I 
 'MODIFICATION OF REMEDIES 
 
 " 1. In an action to recover damages for personal 
 injury sustained by an employ 6 in the course of his 
 employment, or for death resulting from personal in- 
 juries so sustained, it shall not be a defense:
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 23 
 
 Michigan 
 
 " (a) That the employe was negligent, unless and 
 except it shall appear that such negligence was willful; 
 
 " (6) That the injury was caused by the negligence 
 of a fellow employe; 
 
 "(c) That the employe" had assumed the risks in- 
 herent in or incidental to, or arising out of his employ- 
 ment, or arising from the failure of the employer to 
 provide and maintain safe premises and suitable ap- 
 pliances. 
 
 " 2. The provisions of section one shall not apply 
 to actions to recover damages for personal injuries 
 sustained by household domestic servants and farm 
 laborers. 
 
 " 3. The provisions of section one shall not apply 
 to actions to recover damages for the death of, or for 
 personal injuries sustained by employes of any em- 
 ployer who has elected, with the approval of the in- 
 dustrial accident board hereinafter created, to pay 
 compensation in the manner and to the extent herein- 
 after provided. 
 
 2. Election of remedies. 
 
 "Part I, 4. Any employer who has elected, with 
 the approval of the industrial accident board herein- 
 after created, to pay compensation as hereinafter pro- 
 vided, shall not be subject to the provisions of section 
 one; nor shall such employer be subject to any other 
 liability whatsoever, save as herein provided for the 
 death of or personal injury to any employe, for which 
 death or injury compensation is recoverable under this 
 act, except as to employes who have elected in the 
 manner hereinafter provided not to become subject to 
 the provisions of this act."
 
 24 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 1. Abolition of defenses. 
 
 Defenses of assumption of risk and negligence of 
 fellow servant are abolished. 1. If the contributory 
 negligence of the servant is slight and the negligence 
 of the master is gross in comparison, the contributory 
 negligence of the servant is not a defense, but the com- 
 pensation may be diminished, in proportion; "and it 
 shall be conclusively presumed that such employe" 
 was not guilty of contributory negligence in any case 
 where the violation of any statute enacted for the 
 safety of employe's contributed to such employees in- 
 jury." l 1. See Chapter II, post, page 150. 
 
 The Nevada law does not provide that the common- 
 law defenses are abolished unless the employer adopts 
 the compensation feature of the statute, but contains 
 peremptory provisions abolishing such defenses, with- 
 out reservation. It should be observed, however, 
 that by the last sentence of 3 it is provided that, 
 "The employers to whom this Act shall apply shall be 
 any person or persons," etc., engaged in the industries 
 specified in the previous portions of 3. According 
 to the terms of the Act, therefore, the provision abol- 
 ishing common-law defenses applies only to the em- 
 ployers engaged in the industries specified and not 
 
 1 So many subjects are often included in one section in the Nevada 
 law that it is impossible to segregate the sections without more 
 duplication than would be justified in reprinting the sections com- 
 plete several times over. Those who desire to read the statute in its 
 complete form will find it printed in a subsequent portion of this 
 volume.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 25 
 
 Nevada 
 
 generally to all employers. This, in effect, is the same 
 rule that is to be found in the other statutes, but it 
 is worked out in Nevada in a way which is somewhat 
 different from that found in the laws of other juris- 
 dictions. 
 
 2. Election of remedies. 
 
 " 11. Nothing in this act contained shall be held 
 or deemed to require any workman or his personal 
 representatives to proceed under its terms and pro- 
 visions for the recovery of compensation of damages 
 for death or accidental injury. But if the workman or 
 his personal representatives shall so elect, he or they 
 may disregard the provisions of this act and may pur- 
 sue any other remedy at law for the recovery of such 
 compensation or damages for or on account of such 
 death or injury. The right of election or choice of 
 remedies shall be exercised solely by such workman or 
 his representatives." 
 
 The Nevada Act contains a broad provision giving 
 the workman the absolute right to elect whether he 
 will demand "damages" or " compensation." While 
 11, printed above, is loosely drawn, it would seem 
 that if the workman elects to sue for damages under 
 the common law and his employer is engaged in any 
 of the occupations specified in 3 (Chapter II, post, 
 page 152) that then such employe" can pursue the 
 common-law remedy without the right of his employer 
 to set up the then common-law defenses founded on 
 the doctrines of fellow servant, assumption of risk, and 
 contributory negligence, except as the contributory 
 negligence doctrine is modified by 1. Chapter II, 
 post, page 150.
 
 New Hampshire 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 1. Abolition of defenses. 
 
 In case the employer fails to adopt the compensa- 
 tion features of the statute the fellow-servant and 
 assumption-of-risk defenses are expressly abolished by 
 2 and 3 of the act, reprinted in Chapter II, post, 
 page 154. The defense of contributory negligence, 
 however, is still retained. It is, in effect, made an 
 affirmative defense, it being provided, in 2, that 
 "there shall be no liability under this section for any 
 injury to which it shall be made to appear by a pre- 
 ponderance of evidence that the negligence of the 
 plaintiff contributed." See Chapter II, post, page 154. 
 
 It is further provided "that the employer shall not 
 be liable in respect to any injury to the workman 
 which is caused in whole or in part by the intoxication, 
 violation of law or serious or willful misconduct of 
 the workman." 3. See Chapter II, post, page 155. 
 The provision above quoted, however, applies only 
 to the compensation feature of the statute. 
 
 2. Election of remedies. 
 
 The elective part of the statute is not very clear. 
 Apparently an attempt has been made to avoid pos- 
 sible constitutional entanglements. By 3 (Chap- 
 ter II, post, page 155) it is provided "that the employer 
 shall at the election of the workman, or his personal 
 representatives, be liable under the provisions of 
 2 of this Act for all injury caused in whole or in part 
 by willful failure of the employer to comply with any
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 27 
 
 New Jersey 
 
 statute, or with any order made under authority of 
 law." 
 Then follows 4, which provides as follows : 
 
 " 4. The right of action for damages caused by any 
 such injury, at common law, or under any statute in 
 force on January one, nineteen hundred and eleven, 
 shall not be affected by this act, but in case the injured 
 workman, or in event of his death his executor or ad- 
 ministrator, shall avail himself of this act, either by 
 accepting any compensation hereunder, by giving the 
 notice hereinafter prescribed, or by beginning pro- 
 ceedings therefor in any manner on account of any 
 such injury, he shall be barred from recovery in every 
 action at common law or under any other statute on 
 account of the same injury. In case after such injury 
 the workman, or in the event of his death his executor 
 or administrator, shall commence any action at com- 
 mon law or under any statute other than this act 
 against the employer therefor, he shall be barred from 
 all benefit of this act in regard thereto." 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 1. Abolition of defenses. 
 
 " I, 1. Employe entitled to compensation for acci- 
 dental injury. Fact determined by jury. When per- 
 sonal injury is caused to an employe by accident 
 arising out of and in the course of his employment, of 
 which the actual or lawfully imputed negligence of 
 the employer is the natural and proximate cause, he 
 shall receive compensation therefor from his employer, 
 provided the employ^ was himself not willfully negli- 
 gent at the time of receiving such injury, and the ques- 
 tion of whether the employe" was willfully negligent
 
 28 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 shall be one of fact to be submitted to the jury, subject 
 to the usual superintending powers of a court to set 
 aside a verdict rendered contrary to the evidence. 
 
 "2. Certain pleas abolished. The right to compen- 
 sation as provided by section I of this act shall not 
 be defeated upon the ground that the injury was 
 caused in any degree by the negligence of a fellow em- 
 ploye"; or that the injured employe assumed the risks 
 inherent in or incidental to or arising out of his em- 
 ployment or arising from the failure of the employer 
 to provide and maintain safe premises and suitable 
 appliances; which said grounds of defense are hereby 
 abolished. 
 
 "4. Application of act in case of death. The pro- 
 visions of paragraphs one, two and three 1 shall apply 
 to any claim for the death of an employe" arising under 
 an act entitled ' An Act to provide for the recovery of 
 damages in cases where the death of a person is caused 
 by wrongful act, neglect or default/ approved March 
 third, eighteen hundred and forty-eight, and the 
 amendments thereof and supplements thereto. 
 
 "5. Burden of proof on defendant. In all actions 
 at law brought pursuant to section I of this act, the 
 burden of proof to establish willful negligence in the 
 injured employe" shall be upon the defendant." 
 
 The New Jersey statute is dual in character, like 
 most of the compensation laws. It takes away from 
 the employer the ordinary, common-law defenses of 
 assumption of risk and negligence of fellow servant, 
 where the action is founded on the " actual or lawfully 
 
 1 Paragraph three applies to the liability of the principal con- 
 tractor for injuries to a workman employed by a subcontractor. 
 See Chapter III, post, page 185.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 29 
 
 New Jersey 
 
 imputed negligence" of the employer. In such an ac- 
 tion the workman will be defeated if the employer can 
 show that the employe was "willfully negligent." But 
 willful 1 negligence is a question of fact to be determined 
 by the jury, and the burden of proof is on the employer 
 to prove it. Under the purely compensation features 
 of the act, the employe or his dependants will not be 
 defeated in his or their claim unless "the injury or 
 death is intentionally self-inflicted, or when intoxication 
 is the natural and proximate cause of injury." Even 
 in those cases the burden of proof is still on the em- 
 ployer. See II, in Chapter II, post, page 157. 
 
 2. Election of remedies. 
 
 Under the common-law right of action as retained 
 and modified in the portion of the statute printed above 
 in this chapter, the workman can sue for any amount, 
 provided, of course, he has not elected to accept the 
 compensation feature in place of his common-law right 
 of action. As will be seen under Chapter II, all em- 
 ployes waive the right of action under the common- 
 law and have only such rights as are granted under 
 the compensation feature, unless the employer or the 
 employe takes some affirmative action before the ac- 
 cident happens. Both may exempt themselves from 
 the obligations imposed upon them under the statute 
 by an express contract to that effect in the contract of 
 employment. II, paragraph 9. Or either can exempt 
 
 1 "For the purposes of this Act, willful negligence shall consist of 
 (1) deliberate failure to act, or (2) such conduct as evidences reck- 
 less indifference to safety, or (3) intoxication, operating as a proxi- 
 mate cause of injury." III, paragraph 23. See Chapter XVII, 
 post, page 339.
 
 30 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 himself from the terms of the Compensation Act by a 
 specific notice in writing to that effect. If, however, 
 there is neither contract nor notice, both parties are 
 bound by the provisions of II relating to compensation 
 and neither can assert any common-law rights. 
 
 The New Jersey Act, therefore, does not contain the 
 elective features which are to be found in some of the 
 statutes. That is, after an accident happens, the work- 
 man cannof elect whether he will proceed under the 
 common law for " damages" or under the act for 
 " compensation." 
 
 Employer is declared to be synonymous with master 
 and includes natural persons, partnerships and corpora- 
 tions. III, paragraph 23. See Chapter XVII, post, 
 page 339. 
 
 Employe is synonymous with servant and includes 
 all natural persons who perform service for another 
 for financial consideration EXCLUSIVE OF CASUAL EM- 
 PLOYMENTS. III, paragraph 23. See Chapter XVII, 
 post, page 339. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 1. Abolition of defenses. 
 
 "21-1. Defenses of employers not paying insur- 
 ance fund removed. All employers who employ five 
 or more workmen or operatives regularly in the same 
 business, or in or about the same establishment who 
 shall not pay into the state insurance fund the pre- 
 miums provided by this act, shall be liable to their 
 employe's for damages suffered by reason of personal 
 injuries sustained in the course of employment caused 
 by the wrongful act, neglect or default of the em-
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 31 
 
 Ohio 
 
 ployer, or any of the employer's officers, agents or 
 employe's, and also to the personal representatives of 
 such employe's where death results from such injuries 
 and in such action the defendant shall not avail him- 
 self or itself of the following common-law defenses : 
 
 "The defense of the fellow-servant rule, the defense 
 of the assumption of risk, or the defense of contrib- 
 utory negligence. 
 
 The Ohio law is an optional state insurance statute. 
 The penalty for failure to embrace the state insurance 
 plan is that the three common-law defenses of con- 
 tributory negligence, assumption of risk and that 
 founded on the fellow-servant rule, are abolished 
 absolutely. There is no other alternative. An em- 
 ployer cannot adopt the compensation plan without 
 also embracing the state insurance scheme. The 
 plan is somewhat like that adopted by the State of 
 Washington in that the insurance fund is administered 
 directly by the State. In Washington, however, the 
 premiums are collected from every employer, in the 
 industries covered by the statute, in somewhat the 
 same way that a tax is collected. There are severe 
 penalties for failure to pay the tax, but the Washing- 
 ton law allows no option, on the part of the employer, 
 to voluntarily assume these added penalties for failure 
 to embrace the state insurance plan. 
 
 2. Election of remedies. 
 
 "21-2. Willful act of employer. But where a 
 personal injury is suffered by an employe", or when 
 death results to an employ 6 from personal injuries 
 while in the employ of an employer in the course of 
 employment, and such employer has paid into the
 
 32 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 state insurance fund the premium provided for in this 
 act, and in case such injury has arisen from the willful 
 act of such employer or any of such employer's offi- 
 cers or agents or from the failure of such employer, or 
 any of such employer's officers or agents, to comply 
 with any municipal ordinance or lawful order of any 
 duly authorized officer, or any statute for the protec- 
 tion of the life, or safety of employe's, then in such 
 event, nothing in this act contained shall affect the 
 civil liability of such employer, but such injured em- 
 ploye", or his legal representative in case death results 
 from the injury, may, at his option, either claim 
 compensation under this act or institute proceedings 
 in the courts for his damage l on account of such in- 
 jury, and such employer shall not be liable for any in- 
 jury to any employe^ or to his legal representative in 
 case death results, except as provided in this act. 
 
 Every employe", or legal representative in case death 
 results, who makes application for an award from the 
 state liability board of awards, waives his right to 
 exercise his option to institute proceedings in any court. 
 Every employe" or his legal representative in case 
 death results, who exercises his option to institute pro- 
 ceedings in court as provided in section 21-2, waives 
 his right to any award; except as provided in section 36 
 of this act." 
 
 Even though an employer has adopted the state 
 insurance plan, in Ohio, he may still, under certain 
 circumstances, be compelled to pay " damages" in 
 lieu of '"compensation," if an injury to an employe 
 occurs from a "willful act of such employer," or from 
 
 1 In estimating the "damages" in a case provided for in the fore- 
 going section the jury cannot consider any provision of this act, 
 38. See Chapter XXVIII, post, page 533.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 33 
 
 Rhode Island 
 
 the employer's failure to comply with any state or 
 municipal law or regulation respecting safety devices. 
 See 21-2, above. While the employe has this limited 
 election, under the foregoing provision of the law, he 
 cannot pursue both remedies. He must exercise his 
 option as to which remedy he will choose, and this 
 option, once exercised, by making a claim for -" com- 
 pensation" or bringing an action for "damages," is 
 irrevocable. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 1. Abolition of defenses. 
 
 "ARTICLE I 
 "ABROGATION OF REMEDIES AND DEFENSES 
 
 " 1. Removal of defenses. In an action to recover 
 damages for personal injury sustained by accident by 
 an employe arising out of and in the course of his 
 employment, or for death resulting from personal 
 injury so sustained, it shall not be a defense: (a) That 
 the employe was negligent; (6) That the injury was 
 caused by the negligence of a fellow employe; (c) That 
 the employe has assumed the risk of the injury." 
 
 ******** 
 
 " 4. Employer who elects to pay compensation. 
 The provisions of section 1 of this Article shall not 
 apply to actions to recover damages for personal in- 
 juries, or for death resulting from personal injuries sus- 
 tained by employes of an employer who has elected 
 to become subject to the provisions of this act as 
 provided in section 5 of this Article." 
 3
 
 34 
 
 Washington 
 
 2. Election of remedies. 
 
 "Art. I, 7. In lieu of other remedies. The right 
 to compensation for an injury, and the remedy there- 
 for granted by this act, shall be in lieu of all rights and 
 remedies as to such injury now existing, either at 
 common law or otherwise; and such rights and rem- 
 edies shall not accrue to employes entitled to com- 
 pensation under this act while it is in effect." 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 1. Abolition of defenses. 
 
 " 1. Declaration of police power. The common- 
 law system governing the remedy of workmen against 
 employers for injuries received in hazardous work is 
 inconsistent with modern industrial conditions. In 
 practice it proves to be economically unwise and un- 
 fair. Its administration has produced the result that 
 little of the cost of the employer has reached the work- 
 man and that little only at large expense to the public. 
 The remedy of the workman has been uncertain, slow 
 and inadequate. Injuries in such works, formerly 
 occasional, have become frequent and inevitable. The 
 welfare of the State depends upon its industries, and 
 even more upon the welfare of its wage-worker. The 
 State of Washington, therefore, exercising herein its 
 police and sovereign power, declares that all phases 
 of the premises are withdrawn from private contro- 
 versy, and sure and certain relief for workmen, injured 
 in extra hazardous work, and their families and de- 
 pendents is hereby provided regardless of questions of 
 fault and to the exclusion of every other remedy, pro- 
 ceeding or compensation, except as otherwise provided 
 in this act; and to that end all civil actions and civil
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 35 
 
 Washington 
 
 causes of action for such personal injuries and all 
 jurisdiction of the courts of the State over such causes 
 are hereby abolished, except as in this act provided." 
 
 Should the employer fail to pay his quota into the 
 state insurance fund the employe may elect whether 
 to sue for damages under the law as it existed prior 
 to the enactment of the state insurance statute, or to 
 claim compensation from the state insurance fund. 
 Should the employe elect to sue for damages in such 
 a case, or should the State sue the defaulting em- 
 ployer (as it may) after the employe has elected to 
 take compensation, in "any suit brought upon such 
 a cause of action the defense of fellow servant and as- 
 sumption of risk shall be inadmissible, and the doctrine 
 of comparative negligence shall obtain." See 8 in 
 subdivision 2 of this chapter, below. 
 
 2. Election of remedies. 
 
 " 8. Defaulting employers. If any employer shall 
 default in any payment to the accident fund herein- 
 before in this act required, the sum due shall be 
 collected by action at law in the name of the State 
 as plaintiff, and such right of action shall be in addi- 
 tion to any other right of action or remedy. In re- 
 spect to any injury happening to any of his workmen 
 during the period of any default in the payment of 
 any premium under section 4, the defaulting employer 
 shall not, if such default be after demand for payment, 
 be entitled to the benefits of this act, but shall be 
 liable to suit by the injured workman (or the husband, 
 wife, child or dependent of such workman in case 
 death result from the accident), as he would have 
 been prior to the passage of this act. 
 
 " In case the recovery actually collected in such suit
 
 Wisconsin 
 
 shall equal or exceed the compensation to which the 
 plaintiff therein would be entitled under this act, the 
 plaintiff shall not be paid anything out of the accident 
 fund; if the said amount shall be less than such com- 
 pensation under this act, the accident fund shall con- 
 tribute the amount of the deficiency. The person so 
 entitled under the provisions of this section to sue 
 shall have the choice (to be exercised before suit) of 
 proceeding by suit or taking under this act. If such 
 person shall take under this act, the cause of action 
 against the employer shall be assigned to the State 
 for the benefit of the accident fund. In any suit 
 brought upon such cause of action the defense of fel- 
 low servant and assumption of risk shall be inad- 
 missible, and the doctrine of comparative negligence 
 shall obtain. Any such cause of action assigned to the 
 State may be prosecuted or compromised by the de- 
 partment in its discretion. Any compromise by the 
 workman of any such suit, which would leave a 
 deficiency to be made good out of the accident fund, 
 may be made only with the written approval of the 
 department." 
 
 WISCONSIN 
 
 1. Abolition of defenses. 
 
 "2394-1. In any action to recover damages for 
 a personal injury sustained within this State by an 
 employe while engaged in the line of his duty as such, 
 or for death resulting from personal injury so sus- 
 tained, in which recovery is sought upon the ground 
 of want of ordinary care of the employer, or of any 
 officer, agent, or servant of the employer, it shall not 
 be a defense: 
 
 "1. That the employe either expressly or impliedly 
 assumed the risk of the hazard complained of.
 
 ABOLITION OF DEFENSES; ELECTION OF REMEDIES 37 
 
 Wisconsin 
 
 "2. When such employer has at the time of the 
 accident in a common employment four or more em- 
 ploy 6s, that the injury or death was caused in whole 
 or in part by the want of ordinary care of a fellow 
 servant. 
 
 "Any employer who has elected to pay compensa- 
 tion as hereinafter provided shall not be subject to 
 the provisions of this section 2394-1. 
 
 " 2394-2. No contract, rule, or regulation, shall 
 exempt the employer from any of the provisions of 
 the preceding section of this act. 
 
 " 2394-32. The legislature intends the contin- 
 gency in subdivision 2 of section 2394-1 of this act 
 to be a separable part thereof, and the subdivision 
 likewise separable from the rest of the act, and that 
 part of said section 2394-1 that follows subdivision 2, 
 likewise separable from the rest of the act; so that any 
 part of said subdivision, or the whole, or that part 
 which follows said subdivision 2, may fail without 
 affecting any other part of the act." 
 
 The Wisconsin Act eliminates the fellow-servant 
 and assumption-of-risk defenses, but leaves untouched 
 the doctrine of contributory negligence, in so far as 
 common-law actions are concerned. The act provides 
 that the sections eliminating these defenses shall not 
 apply to "any employer who has elected to pay com- 
 pensation." In view of the fact that any employer 
 who has elected to pay compensation cannot set up any 
 such defenses, the exception to the elimination clause 
 seems somewhat superfluous. See 2394-1 (2), above. 
 
 What was really intended was that if the employer 
 has elected to come under the compensation feature 
 of the statute and the employe has elected before the 
 accident happens not to be bound by the compensation
 
 38 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 provision of the law but to retain his common-law 
 right of action, then the employer may set up the 
 common-law defenses in any action which the employe 
 may bring. This, of course, is to compel the employe 
 to adopt compensation whenever his employer has 
 done so. 
 
 2. Election of remedies. 
 
 There is no provision in the Wisconsin Act allowing 
 a workman to elect, after an accident, whether he will 
 take under the compensation features or under the 
 common law. In fact if the employer brings himself 
 within the provisions of the act, and the workman 
 does nothing to indicate that he has not accepted the 
 right to compensation under the act, the employer's 
 liability for compensation is "in lieu of any other 
 liability whatsoever." See 2394-4, in Chapter II, 
 post, page 171. But, of course, any employe may re- 
 fuse to accept compensation if he takes the proper 
 steps before an accident happens. In such a case he 
 may pursue his common-law right of action for dam- 
 ages. In that event, however, the employe" may take 
 advantage of all the common-law defenses if the em- 
 ployer has himself embraced the compensation features 
 of the statute.
 
 CHAPTER II 
 
 TO WHOM ACT APPLIES 
 
 Page 
 
 1. Election to accept compensation principle 39 
 
 2. Acceptance of compensation principle as to part only of 
 
 employes 42 
 
 3. Accidents happening without the State of the residence of 
 
 the employe" or workman 44 
 
 4. Accidental bodily injury 47 
 
 5. "Arising out of and in the course of the employment" 70 
 
 6. Who is a " workman" 110 
 
 7. Who is an agricultural worker 121 
 
 8. Who is a casual employ^ 121 
 
 9. Serious and willful misconduct 123 
 
 Page Page 
 
 CALIFORNIA 132 NEW HAMPSHIRE 153 
 
 ILLINOIS 136 NEW JERSEY 156 
 
 KANSAS 141 OHIO 159 
 
 MASSACHUSETTS 145 RHODE ISLAND 161 
 
 MICHIGAN 146 WASHINGTON 164 
 
 NEVADA 150 WISCONSIN 170 
 
 1. Election to accept the compensation principle. 
 
 The various statutes contain different methods of 
 bringing the employers and employes within the terms 
 thereof. Because of the decision in the case of Ives v. 
 South Buffalo Ry. Co., 201 N. Y. 271, that employers 
 could not be compelled to adopt the compensation 
 principle in such legislation, all the subsequent acts l 
 
 1 The first compensation act in this country was passed by the 
 State of New York. This was a compulsory act, as to certain 
 
 39
 
 40 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Election to accept compensation principle 
 
 except that of the State of Washington, contain some 
 kind of an option which the employer may exercise or 
 not as he chooses. The employes also have an election 
 whether or not to accept compensation, even though 
 the employer has declared in its favor. The first, or 
 basic, election, however, rests with the employer. 
 When the employer has failed to adopt compensation 
 his employe's cannot, by anything which they may do, 
 compel their employer to embrace that principle. 
 Once the employer has declared in favor of compensa- 
 tion then his employes still have an election whether 
 or not they also will be bound by that principle. 
 
 Certain methods have been used to coerce both em- 
 ployers and employes to adopt compensation. If the 
 employer fails to adopt it he is punished by taking 
 away the common-law defenses of assumption of risk, 
 negligence of fellow servant and in some cases, that of 
 contributory negligence of the plaintiff. If, on the 
 other hand, the employer declares in favor of compen- 
 sation and his employes decide not to accept that 
 principle, then the employer may take advantage of 
 such of the common-law defenses as are still permitted 
 under the terms of any particular act, in any actions 
 which are brought against him by his employe's so de- 
 ciding. 
 
 There are two general methods of electing to be 
 bound by the compensation principle. One may be 
 said to be positive and the other negative. For ex- 
 
 especially hazardous employments. In other words, it compelled 
 the employers in those employments to adopt the compensation 
 principle. The act was declared to be unconstitutional in the case 
 of Ives v. South Buffalo Ry. Co., 201 N. Y. 271, which decision is 
 printed in full in a subsequent portion of this volume.
 
 TO WHOM ACT APPLIES 41 
 
 Election to accept compensation principle 
 
 ample, in New Jersey, both employers and employe's 
 are presumed to have accepted the compensation prin- 
 ciple, unless they take some affirmative action to in- 
 dicate to the contrary. This may be termed the nega- 
 tive method. In other States, like Massachusetts, for 
 example, an employer can adopt the compensation 
 principle only by taking some positive action, that is, 
 doing the acts which the statute requires and posting 
 notices in his places of business indicating his election. 
 
 Either one of these two methods, with slight varia- 
 tions, will be found in all the compensation statutes, 
 except in that of the State of Washington. In that com- 
 monwealth a purely state insurance law has been passed, 
 which is obligatory on all employers and employes as 
 well, in the occupations which the act includes. There 
 are certain penalties for nonpayment of the premiums 
 or assessments to the State Insurance Fund, but the 
 employer cannot relieve himself from the obligation to 
 pay compensation by such default. He must pay the 
 compensation premiums in addition to the penalties. 
 
 As heretofore stated, no two of the Compensation 
 Acts are exactly alike. In this chapter there will be 
 found indicated the employers and employes who are 
 included in the various state acts, as well as a good deal 
 of discussion relating to the general principles found 
 in all the acts. For example, while the definition, or 
 term, or phrase "arising out of and in the course of the 
 employment" does not appear, in so many words, in 
 all the statutes, it is practically the basis of each of 
 them, in principle, in determining whether or not an 
 employe* is entitled to compensation for an injury while 
 in his employer's service. In elucidating this and many 
 other topics a large number of English, Scotch, Irish
 
 42 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Acceptance of compensation as to part of employe's 
 
 and Canadian cases have been cited, where decisions 
 have been made on provisions in the British or Cana- 
 dian Compensation Acts which are similar in principle 
 to these found in the American state statutes. 
 
 2. Acceptance of compensation principle as to part 
 only of employes. 
 
 One of the most important questions that has arisen 
 at the threshold in the adoption of the compensation 
 principle, relates to the right of an employer to accept 
 that principle as to a portion of his employes and re- 
 ject it as to the remainder. As all the laws thus far 
 passed, except the state insurance law in the State of 
 Washington, are elective statutes, it follows that the 
 employer has the first right of election, whether or not 
 he will adopt the compensation principle. Of course, 
 he does this either by silence or by some affirmative 
 act, according to the provisions of the particular stat- 
 ute under which he operates. The question has arisen : 
 Can the employer discriminate in making this election 
 between different classes of employes? Can he bring 
 in shop hands and exclude traveling salesmen, or cleri- 
 cal employes? Can he include those in a particularly 
 hazardous portion of his establishment and exclude the 
 others in a less dangerous occupation? It has been 
 urged that the employer has the right to make this 
 discrimination, for the reason that the employes have 
 the right of individual election whether or not they shall 
 be bound by the employer 's election to adopt compensa- 
 tion. The employe's right exists as to the different 
 employe's in the same shop. Some may accept the com- 
 pensation principle, as adopted by the employer, while 
 others may reject it, and stand on their common-law
 
 TO WHOM ACT APPLIES 43 
 
 Acceptance of compensation as to part of employes 
 
 right of action, for injuries suffered in the master's em- 
 ployment. 
 
 The only decision on the point, so far as the author 
 is aware, is that made by the Industrial Commission 
 of Wisconsin. To a question by an employer as to the 
 right to file a qualified election to come under the com- 
 pensation law the Commission replied as follows: 
 
 "Under the Compensation Act, if you file a general 
 notice of election, all your employes will be covered as 
 to all accidents happening in the course of their em- 
 ployment in the State of Wisconsin. The law will not 
 cover accidents happening outside of the State. Some 
 few employers have filed modified notices of election; 
 for instance, they have, in one or two instances, ex- 
 cluded their traveling salesmen in the notice of election 
 filed. There is some doubt about the legality of such 
 filing of notice and the Commission does not advise 
 modified notices of this kind, but if you choose to file 
 such a notice, the Commission will administer the law, 
 and leave it to the courts to say whether it is sufficient 
 to exclude a part of your employes. The writer sug- 
 gests that if you desire to exclude your traveling sales- 
 men from the operation of the law you can do so by 
 having an understanding with the salesmen to that 
 effect, and that within thirty days from the time you 
 file your notice of election, your traveling salesmen 
 may serve upon you a notice to the effect that they do 
 not desire to come under the Act." 
 
 The author is of the opinion that the establishment 
 of the right to make a qualified election would lead to 
 confusion and probably to abuses. It is believed that 
 should the courts sustain such a right under the com- 
 pensation statutes that this privilege would be abol-
 
 44 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidents happening without the State 
 
 ished very speedily by statutory amendment. The 
 statutes themselves specify the classes of employes which 
 come within their terms. Should employers be per- 
 mitted to make other classifications this would amount, 
 in effect, to material amendments to the statutes. The 
 author is of the opinion, therefore, that employers must 
 elect as to all of their employe's or as to none, in spite 
 of the right of each employe" to elect separately. 
 
 3. Accidents happening without the State of the resi- 
 dence of the employer or the workman. 
 
 Many complicated and serious questions doubtless 
 will arise over the right to compensation, where an 
 injury occurs in one State and the employer or the 
 employe resides in another; or where it occurs in a 
 State where neither of them resides. Naturally, the 
 compensation laws, like other state statutes, have no 
 extraterritorial effect. That is, should the employer 
 and employe" both reside in New Jersey, for example, 
 and the employe should be sent into the State of Penn- 
 sylvania on the employer's business, and there injured 
 (there being no compensation law in Pennsylvania), 
 such employe" could not recover compensation in New 
 Jersey. The same rule has been established in Great 
 Britain. 
 
 The Workmen's Compensation Act of 1906 has no 
 extraterritorial force, and so is not operative outside of 
 the confines of the United Kingdom, and "any em- 
 ployment" in 1 (1) of the Act is restricted to employ- 
 ment within the boundaries of the United Kingdom, 
 except in the case of seamen who are especially pro- 
 vided for by 7. It was held, therefore, that the de- 
 pendent of a workman who was a domiciled English-
 
 TO WHOM ACT APPLIES 45 
 
 Accidents happening without the State 
 
 man employed by English employers under a contract 
 of service entered into in England, who was killed by 
 an accident arising out of and in the course of his em- 
 ployment while working in a place beyond the limits 
 of the United Kingdom, was not entitled to compensa- 
 tion under the Act. Tomalin v. S. Pearson & Son 
 (1909), 100 L. T. 685; 2 B. W. C. C. 1. 
 
 A charwoman residing at Dover, England, was taken 
 by her employer, a French woman, to Calais, France, 
 on two occasions to do work in the employer's house, 
 and while at Calais she suffered an injury. It was held 
 that the Compensation Act did not apply when the 
 action was brought in the County Court at Dover. 
 Hicks v. Maxton (1907), 1 B. W. C. C. 150. 
 
 It is held that where an action is brought in one 
 State, for injuries causing death in another State, that 
 the plaintiff may show that the law of the State in 
 which the accident occurred permits recovery for death 
 in such cases, provided the statute of the State where 
 the accident happened is similar : to that of the State 
 in which the action is brought. Howlan v. N. Y. & 
 N. J. Telephone Co., 131 App. Div. (N. Y.) 443; 115 
 Supp. 316; Ziemer v. Crucible Steel Co., 99 App. Div. 
 169; 90 Supp. 962; Johnson v. Phcenix Bridge Co., 133 
 App. Div. 807; 118 Supp. 88. 
 
 An action may be maintained in the courts of a State 
 founded on the Federal Employers' Liability Act. 
 Second Employers' Liability Cases, 223 U. S. 1 (Re- 
 printed in Chapter XXXVIII, post}; Payne v. N. Y., 
 Susquehanna & W. R. Co., 201 N. Y. 436. It seems 
 also that an action may be maintained in the courts of 
 one State, based, partly at least, on an employers' 
 1 Not necessarily identical.
 
 46 BRADBURY'S WORKMEN" s COMPENSATION LAW 
 
 Accidents happening without the State 
 
 liability act of another State. Payne v. N. F., Sus- 
 quehanna & W. R. Co., 201 N. Y. 436. 
 
 It has been urged that if an employer and an em- 
 ploye" both resided in Pennsylvania, where there was 
 no compensation law, and the employe should go on 
 the employer's business into the State of New Jersey, 
 where there was such a statute, and should there be 
 injured, that the Pennsylvania courts would enforce 
 the right to compensation under the New Jersey law, 
 if the employe 1 in his suit should plead and prove the 
 New Jersey statute. Such cases are complicated, how- 
 ever, by the preliminary question as to whether or not 
 the employer has exercised his option to adopt the 
 compensation principle. A serious question might 
 possibly arise, under the circumstances recited above, 
 as to the laws of those stated, including New Jersey, 
 where the terms of the compensation acts are presumed 
 to have been adopted by silence on the part of the em- 
 ployer. Of course, the question could not arise at all 
 as to those States in which the employer must take 
 some affirmative action to indicate that he has adopted 
 the compensation principle. In the latter States, if 
 the employer has remained silent, there is no doubt 
 that the employe could not enforce compensation in the 
 courts of the State of his and his employer's residence, 
 which had no compensation law, for an accident which 
 happened in the other State, which had one. But 
 should the employer send his employe on the employer's 
 business into an adjoining State where the compensa- 
 tion law is presumed to have been adopted by the 
 silence of the employer, it may possibly be that on the 
 principle of the cases cited above under the Employers' 
 Liability Act, the employe" would be able to enforce his
 
 TO WHOM ACT APPLIES 47 
 
 Accidental bodily injury 
 
 right to compensation under the laws of the State to 
 which he was sent, in the courts of the State of the 
 residence of his employer and himself, for an injury 
 occurring in the State to which he was sent. The 
 author is of the opinion, however, that the state court 
 would not enforce such a cause of action unless the 
 laws of its own State recognized the general principle 
 of " compensation." Wooden v. Western N. Y. & P. R. 
 Co., 126 N. Y. 10; Howlan v. N. Y. & N. J. Tekphone 
 Co., 131 App. Div. 443; 115 Supp. 316. Otherwise the 
 courts of a State where a compensation law had been 
 declared to be unconstitutional might be called upon 
 to sustain an action under a similar law of another 
 commonwealth. 
 
 4. Accidental bodily injury. 1 
 
 All the acts contain in one form or another the ex- 
 pression, or the idea in other words, of an accidental 
 bodily injury, as being the basis of compensation. If 
 a workman intentionally inflicts an injury to himself, of 
 course it is not "accidentally" inflicted. There were 
 a number of American cases on this subject, decided 
 prior to the adoption of the compensation laws, which 
 are still applicable. But the compensation statutes 
 have so broadened the field by eliminating the question 
 of the master's negligence as an element in an acci- 
 dental injury, that not all of the American cases can 
 now be considered as precedents to be followed under 
 the new doctrine. The English, Irish, Scotch and 
 Canadian cases arising directly under compensation 
 statutes will be found thoroughly covered in the pages 
 
 1 See also next title, "ARISING OUT OF AND IN THE COURSE OF 
 EMPLOYMENT."
 
 48 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 which immediately follow. Some American cases which 
 have been found to be still applicable have been in- 
 serted also. The italic topical first lines will guide the 
 investigator to the solution of his own particular ques- 
 tion. 
 
 In relation to an accident insurance policy the United 
 States Supreme Court has defined the term "acciden- 
 tal" as follows: "The term 'accidental' 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 unusual or unexpected 
 way, it cannot be called a result effected by accidental 
 means. But if, in the act which precedes the injury, 
 something unforeseen, unexpected, unusual occurs which 
 produces injury, then the injury has resulted through 
 accidental means." Mutual Accident Assn. v. Barry, 
 131 U. S. 100, 121; 9 Sup. Ct. R. 755; 33 L. Ed. 60. 
 
 Word accident to be used in popular or ordinary sense. 
 The question of whether or not an injury is an accident 
 within the meaning of the Act is a mixed one of law and 
 fact. Roper v. Greenwood (1900), 83 L. T. 471; 3 W. 
 C. C. 23. The House of Lords has held that the word 
 "accident" is to be used in the popular and ordinary 
 sense of the word as denoting an unlooked-for mishap 
 or an untoward event which is not expected or designed. 
 Fenton v. Thorky & Co. (1903), A. C. 443; 5 W. C. C. 1. 
 In the last-mentioned case the workman had by over- 
 exertion ruptured himself in trying to turn the wheel of 
 a machine in the ordinary course of his employment, 
 and it was held by the House of Lords that he had 
 suffered an accident within the meaning of the Act. 
 
 Question of law when applied to ascertained facts. Un-
 
 TO WHOM ACT APPLIES 49 
 
 Accidental bodily injury 
 
 der the British Act the meaning of the word "acci- 
 dent," when applied to ascertain facts has been de- 
 cided by the House of Lords to be a question of law. 
 Fenton v. Thorky & Co., 19 T. L. R. 684. 
 
 Lightning. Where a bricklayer working on a scaffold 
 twenty-three feet from the ground was struck by light- 
 ning and killed it was held that the accident arose out 
 of the employment and the widow was entitled to 
 compensation. Andrew v. Failsworth Industrial Soc. 
 (1904), 90 L. T. 611; 6 W. C. C. 11. The last men- 
 tioned case was decided by the Court of Appeal of 
 England. The case was not decided squarely on the 
 ground that in all cases where a workman was killed 
 by lightning his dependents would be entitled to com- 
 pensation. The judgment of the court below was 
 adopted to the effect that this particular workman was 
 in a more than ordinarily dangerous position as to 
 lightning. 
 
 Attack by strikers. It has been held that an injury 
 sustained by a workman during an attack on the works 
 by strikers is not an injury by accident. Murray v. 
 Denholm & Co. (1911), 48 Scotch L. R. 896; distinguish- 
 ing Nisbet v. Rayne & Burn (1910), 2 K. B. 689; 3 B. 
 W. C. C. 507, where a cashier employed regularly to 
 carry wages by train to a colliery, was shot by a stranger 
 and the wages were stolen and it was held that his 
 dependents were entitled to compensation. 
 
 Attack by poachers. A gamekeeper, while in the dis- 
 charge of his duties, was attacked by poachers and 
 injured. It was held that this was a personal injury by 
 accident. Anderson v. Balfour (1910), 44 Irish L. T. 
 168;3B. W. C. C. 588. 
 
 Murder committed by robber. A cashier employed 
 4
 
 50 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 regularly to carry wages by train to a colliery was shot 
 by a stranger in the course of the journey and the 
 wages were stolen. It was held that his death was 
 caused by an accident and that the accident arose out 
 of and in the course of his employment. Nisbet v. 
 Rayne & Burn (1910), 2 K. B. 689; 3 B. W. C. C. 507. 
 
 Sailor on board his ship in foreign port hit by stray 
 bullet shot by revolutionist. The applicant for compen- 
 sation was quartermaster on the steamship "Warrior." 
 Upon arriving at Pernambuco, Brazil, it was learned 
 that a revolution was in progress and fighting was 
 plainly heard in the town. The members of the crew 
 were not permitted to go on shore in consequence. 
 While the applicant was engaged in his duties on the 
 ship he was hit by a stray bullet and wounded. It was 
 held by the Liverpool County Court that the connec- 
 tion between the employment and the accident was 
 too remote to entitle the applicant to compensation. 
 The court said that the risk was one not ordinarily 
 incident to the employment of a seaman, nor a special 
 risk which could reasonably be foreseen and to which 
 the applicant was ordered to expose himself. More- 
 over, the applicant was not specially exposed as com- 
 pared with anyone else within range of the shots. Com- 
 pensation was therefore refused. McShane v. Harrison 
 (March, 1912), reported in "The Policy Holder," 
 April 10, 1912, page 296. 
 
 Drowning from tug. An engineer who was employed 
 on board a small steam tug, was last seen asleep in his 
 bunk at 5 A. M. An hour afterward he had disappeared, 
 leaving his working clothes lying at the side of his bunk. 
 The tug was to commence towing at 7 A. M. that 
 morning and steam had been ordered to be got up for
 
 TO WHOM ACT APPLIES 51 
 
 Accidental bodily injury 
 
 that hour. The deck was a place where between five 
 and seven A. M. he was entitled to be. Two days 
 afterward his body, clad in his ordinary sleeping clothes, 
 was found in the water near the place where the tug 
 had been moored on the morning in question. The 
 examining physician testified that the man's death was 
 due to drowning. It appeared in evidence that he was 
 unable to swim, but there was no direct testimony as 
 to how the deceased had met with his death. It was 
 held that the arbitrator was entitled to draw the in- 
 ference of fact that the workman had accidentally fallen 
 overboard and been drowned, and that the accident 
 arose out of and in the course of the man's employ- 
 ment. Mackinnon v. Miller (1909), 46 Scotch L. R. 
 299; 2 B. W. C. C. 64. 
 
 Condition due to defective medical treatment. It 
 seems that a workman is entitled to compensation, 
 although his condition is attributable to defective 
 medical treatment. Beadle v. Milton & Others (1903), 
 114 L. T. 550; 5 W. C. C. 55. Whether present in- 
 capacity for work results from the injury or from 
 neglect of medical or surgical advice is a question of 
 fact. Smith v. Cord Taton Colliery Co. (1900), 2 W. C. 
 C. 121. 
 
 ' ' Larking" or joking. One of two boys was injured in 
 avoiding a handful of rubbish which was thrown at 
 him by another boy, and it was held that the accident 
 did not arise out of the employment. William Baird 
 Co. v. Burley (1908), 45 Scotch L. R. 416; 1 B. W. C. C. 
 7. A boy set to clean a machine at rest was " larking" 
 with another boy and accidentally started the machine 
 thereby injuring himself, and it was held that the acci- 
 dent did not arise out of the employment. Cole v. Evans,
 
 52 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 Son, Lescher & Webb (1911), 4 B. W. C. C. 138. To 
 the same effect, Furniss v. Gartside & Co. (1910), 3 B. 
 W. C. C. 411. 
 
 Piece of steel hitting eye. While engaged in chipping 
 the burs from a steel plate with a cold chisel, the work- 
 man was injured by a piece of the steel so chipped off, 
 striking him in the eye and destroying his sight. It 
 was held that this was an accident within the meaning 
 of the British Compensation Act. Neville v. Kelly 
 Bros. & Mitchell (1907), 13 B. C. 125; 1 B. W. C. C. 
 432. 
 
 "Heat stroke." A seaman employed as a trimmer on 
 board the steamship Majestic while engaged in drawing 
 ashes from the ship's furnace, had a ''heat stroke" and 
 died therefrom about two hours afterwards. The sea- 
 man was in a weakly state of health and of low vitality 
 when he entered upon his duties, and consequently 
 liable to such attack. It was held by the House of 
 Lords, upholding the decision of the Court of Appeal 
 in Ireland, that the "heat stroke" was a personal in- 
 jury by accident. Ismay-Imrie & Co. v. Williamson 
 (1908), 42 Ir. L. T. 213; 1 B. W. C. C. 232. In the 
 last-mentioned case the Lord Chancellor said: "To my 
 mind the weakness of the deceased which predisposed 
 him to this form of attack is immaterial. The fact that 
 a man who has died from a heat stroke was by physical 
 debility more likely than others so to suffer can have 
 nothing to do with the question whether what befell 
 him is to be regarded as an accident or not. * * * In 
 my view this man died from an accident. What killed 
 him was a heat stroke coming suddenly and unex- 
 pectedly upon him while at work. Such a stroke is an 
 unusual effect of a known cause, often, no doubt,
 
 TO WHOM ACT APPLIES 53 
 
 Accidental bodily injury 
 
 threatened, but generally averted by precautions which 
 experience, in this instance, had not taught. It was an 
 unlooked-for mishap in the course of his employment. 
 In common language, it was a case of accidental death. 
 I feel that, in construing this Act of Parliament, as in 
 other cases, there is a risk of frustrating it by excess of 
 subtlety, which I am anxious to avoid." Citing Fenton 
 v. Thorley & Co. (1903), A. C. C. 443; 5 W. C. C. 1, 
 with approval. 
 
 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 became 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 em- 
 ployment, was one of fact for the County Court judge 
 to decide. Johnson and Others v. Owners of Ship " Tor- 
 rington" (1909), 3 B. W. C. C. 68. 
 
 Sunstroke. Sunstroke has been held to constitute an 
 accidental injury. Morgan v. Owners of S. S. Zenaida 
 (1909), 25 T. L. R. 446; 2 B. W. C. C. 19. The last- 
 mentioned case was decided by the Court of Appeal of 
 England. The applicant, an ordinary seaman, while 
 engaged in painting the vessel when she was lying at a 
 port on the coast of Mexico was incapacitated by sun- 
 stroke. The medical evidence was to the effect that a 
 seaman painting the outside of a ship is running a 
 greater risk of sunstroke than when employed on deck, 
 because he not only gets the direct rays of the sun, but 
 he also gets the reflected rays from the ship's side.
 
 54 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 Sunstroke, however, is generally classified as a 
 disease rather than an accident. Dozier v. Fidelity & 
 Casualty Co., 46 Fed. 446; 13 L. R. A. 114. 
 
 Inflammation of kidneys from working in water. 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 inflammation 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. 
 
 Frostbite. Whether or not an injury caused by frost- 
 bite sustained by a van driver was an accident was 
 discussed, but not decided, in the case of Warner v. 
 Couchman (1911), 1 K B. 351; 4 B. W. C. C. 32. In the 
 last-mentioned case a journeyman baker, a portion of 
 whose duty it was to drive his master's cart and deliver 
 bread, was frostbitten in the hand. It was found that 
 there was nothing in the man's employment which ex- 
 posed him to more than the ordinary risk of cold to which 
 any person working in the open was exposed on the day 
 in question. It was held by the Court of Appeal of Eng- 
 land that this was not an accident arising out of the 
 employment within the meaning of the Act. 
 
 In another case a seaman at work on his ship at Hal- 
 ifax, N. S., sustained frostbite. The judge found that 
 the workman had not proved that the frostbite was due 
 to any particular circumstance in connection with his 
 employment, nor had he been exposed to more risk of 
 frostbite than is usual in winter at Halifax, and it was 
 held that the accident did not arise out of the employ- 
 ment. Karemaker v. Owners of S. S. 11 Corsican" (191 1) , 
 4 B. W. C. C. 295. In the last-mentioned case the 
 court said: ''Halifax is a place where people do receive
 
 TO WHOM ACT APPLIES 55 
 
 Accidental bodily injury 
 
 frostbite, and therefore it is proper and necessary to 
 take steps to guard against it. In that sense the lia- 
 bility to frostbite is one of the normal incidents to 
 which everybody is subjected by reason of the severity 
 of the climate." 
 
 ' 'Beat hand "or" beat knee.' ' Contracting ' ' beat hand ' ' 
 or "beat knee," a miner's disease or injury caused by 
 the gradual process of continued friction, is not art 
 accident. Marshall v. East Holywell Coal Co. (1905), 
 7 W. C. C. 19. 
 
 Rupture. Rupture caused by overexertion in the 
 course of a man's work is an accident within the mean- 
 ing of the Compensation Act. (House of Lords), Fenton 
 v. J. Thorley & Co. (1903), 89 L. T. 000; 5 W. C. C. 1. 
 The court disapproved of the cases of Hensey v. White 
 (1900), 1 Q. B. 481; 2 W. C. C. 1; Roper v. Greenwood 
 (1901), 83 L. T. 471; 3 W. C. C. 23, and approved of 
 the decision of the Court of Sessions in Scotland re- 
 ported in the case of Stewart v. Wilsons & Clyde Com- 
 pany (1903), 5 F. 120. The court also cited in support 
 of the doctrine announced the following American 
 cases: United States Mutual Accident Ins. Ass'n v. 
 Barry (1888), 131 U. S. 100, and North American Life 
 & Accident Ins. Co. v. Burroughs, 69 Penn. 43. 
 
 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 follow- 
 ing his employment. It was held that although from 
 a purely medical or surgical view, the injury could not 
 be said to be an untoward or unexpected event, it was 
 nevertheless an accident within the meaning of the Act.
 
 56 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 Fulford v. Northfleet Coal & Ballast Co. (1907), 1 B. W. 
 C. C. 222. A workman who had been operated on for 
 a hernia subsequently was compelled to wear a truss 
 because of the reappearance of the hernia. Several 
 months after he began wearing the truss, while he was 
 driving cows over some moorland country the rupture 
 came down and became strangulated. He was oper- 
 ated upon again but died from exhaustion. It was held 
 that there was no evidence to support an inference 
 that the deceased met with an accident. Walker v. 
 Hurrays (1911), 48 Scotch L. R. 741 ; 4 B. W. C. C. 409. 
 
 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 v. 
 Leeds Forge Co., 16 T. L. R. 521. 
 
 Sprains and strains. 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. 
 This injury subsequently developed into traumatic 
 phlebitis and it was held that this was a personal in- 
 jury by accident within the meaning of the Compensa- 
 tion Act. Purse v. Hayward (1908), 1 B. W. C. C. 216. 
 A man at work called out that he had hurt his back. 
 No one saw what had happened. He was taken home 
 complaining of pains in the back and stomach. He 
 died a week later of intestinal obstruction. There was 
 evidence of previous illnesses and pains in the stomach. 
 It was held that the onus of proving an accident had not 
 been discharged. Farmer v. Stafford, Allen & Sons 
 (1911), 4 B. W. C. C. 223. An internal injury caused 
 to a person in a normal state of health by a fortuitous 
 and unforeseen event in the usual course of his business 
 is an accident. So held in a case where a workman
 
 TO WHOM ACT APPLIES 57 
 
 Accidental bodily injury 
 
 while lifting a heavy beam suddenly tore several fibers 
 of the muscles of his back. Boardman v. Scott & Whit- 
 worth (1901), 3 W. C. C. 33, aff'd (1901), 85 L. T. 502; 
 4 W. C. C. 1. 
 
 A woman suffering from an ailment which she knew 
 would be aggravated by lifting boxes which were too 
 heavy for her, notwithstanding continued the work 
 and strained herself. It was held that this was not an 
 accident. Roper v. Greenwood (1900), 3 W. C. C. 23. 
 
 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 v. Leeds Forge Co., 2 W. C. C. 10. 
 
 The word "accident" involves the idea of something 
 fortuitous and unexpected. A man who was not in a 
 sound condition of health injured himself when doing 
 his ordinary work which was somewhat harder than 
 usual. It was held that the injury was not caused by 
 accident. Hensey v. White (1900), 81 L. T. 767; 2 W. 
 C. C. 1. 
 
 Overexertion. A workman, in the course of his ordi- 
 nary and usual employment, overexerted himself and 
 eventually brought on an attack of cerebral hemorrhage, 
 and it was held that the occurrence was an accident 
 within the meaning of the Act. M'Innes v. Dunsmuir 
 '& Jackson (1908), 45 Scotch L. R. 804; 1 B. W. C. C. 
 226. See to the same effect, Martin v. Travelers' Ins. 
 Co., 1 F. & F. 505.
 
 58 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 Apoplexy. A collier died of apoplexy during working 
 hours in a mine. The majority of the doctors said that 
 his arteries were in a very diseased condition, and that 
 apoplexy might have come upon him when asleep in 
 bed, or when walking about, or when overexerting 
 himself. The collier's work on that day was to build 
 a pack, but there was no evidence that apoplexy came 
 upon him when he was incurring a strain. It was held 
 that as the evidence as to the cause of death was equally 
 consistent with an accident and with no accident, and 
 the onus of proving that it was due to accident rested 
 on the applicants, in this case that onus had not been 
 discharged by them. Barnabas v. Bersham Colliery Co. 
 (1910), 4 B. W. C. C. 119. 
 
 Fits causing fall. Where a laboring man working 
 near an open hatchway was seized with epileptic fits 
 and fell down the hold, it was held that this was an 
 accidental injury even though the having of the fit 
 itself, if it had taken place under circumstances such as 
 not to cause an injury, would not have been an acci- 
 dent. Wilkes (or Wicks) v. Dowell & Co. (1905), 2 K. 
 B. 225; 7 W. C. C. 14. 
 
 Heart disease. A workman had for years been suffer- 
 ing from progressive heart disease. While hurrying to 
 the station with a parcel, in the course of his employ- 
 ment, he was taken ill and died. It was held that the 
 death was attributable to the disease and that there 
 was no evidence of accident within the meaning of the 
 Act. O'Hara v. Hayes (1910), 44 Irish L. T. 71; 3 B. 
 W. C. C. 586. 
 
 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
 
 TO WHOM ACT APPLIES 59 
 
 Accidental bodily injury 
 
 caused a rupture of the aneurism, resulting in death. 
 The County Court judge, on conflicting evidence, found 
 that the workman's death resulted from personal in- 
 jury by accident within the meaning of the Act. It was 
 held in the House of Lords that there was evidence 
 on which the County Court judge was justified in so 
 deciding. Clover, Clayton & Co. v. Hughes (1910), A. C. 
 242; 3 B. W. C. C. 275, aff'g 2 K. B. 798; 2 B. W. C. C. 
 15. The above-entitled case was considered at great 
 length in the various opinions written in the House of 
 Lords. Lord LOKEBURN 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 
 act admits of a claim in the present case, every one 
 whose disease kills him while he is at work will be en- 
 titled 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 employment taken together,
 
 60 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 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 
 arbitrator, but I am bound by the findings, if there was 
 evidence to support 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 Lord- 
 ships to affirm the order of the Court of Appeal." 
 There were two dissenting opinions filed by Lords 
 ARKINSON and SHAW. 
 
 Cardiac breakdown due to heavy work. A workman 
 who, while engaged in work which was too heavy for 
 him, felt a sudden pain upon his chest, a few days after- 
 ward became totally incapacitated. In an application 
 for compensation the arbitrator found as a fact that the 
 cause of the incapacity was a cardiac breakdown due 
 to the fact that the work in which the workman had 
 been engaged was too heavy for him and that he was 
 not injured by any sudden jerk. It was, therefore, 
 held that the repeated excessive exertion strained the 
 workman's heart until it was finally overstrained. 
 Under these circumstances, it was held that the in- 
 capacity was not due to a personal injury by accident 
 within the meaning of the Act. Coe v. Fife Coal Co. 
 (1909), 46 Scotch L. R/325; 2 B. W. C. C. 8. 
 
 Syncope. While a workman was driving a cart the 
 horse fell, the shaft broke, and the man apparently 
 was thrown out. He went to a farm to borrow another 
 cart; being unsuccessful in this he walked away with 
 the horse and was subsequently found dead on the
 
 TO WHOM ACT APPLIES 61 
 
 Accidental bodily injury 
 
 road at the top of a hill. The medical evidence was that 
 he died from syncope, but that it was impossible to say 
 for certain what had caused the syncope. The judge 
 held that the dependent had not discharged the onus of 
 proving that the death was caused by the accident. 
 This decision was affirmed on appeal. Powers v. Smith 
 (1910), 3 B. W. C. C. 470. 
 
 Paralysis. A workman gradually acquired paralysis 
 of his right leg through the strain of riding a heavy 
 carrier tricycle for his employers. At the end of five 
 years the condition incapacitated him from work. It 
 was held that the paralysis was not a personal injury 
 by accident, and that the workman was not entitled to 
 compensation. Walker v. Hockney Brothers (1909), 2 
 B. W. C. C. 20. 
 
 Falling from wagon. A carman fell from his van and 
 sustained injuries. He died three weeks later. No 
 evidence was produced to show the connection be- 
 tween the accident and death, the doctor who had at- 
 tended the man being abroad. It was held reversing 
 the decision of the County Court judge that there was 
 no evidence that the death was due to the accident. 
 Honor v. Painter (1911), 4 B. W. C. C. 188. 
 
 A workman fell from a cart and was injured. He 
 died nine days afterward. The only medical evidence 
 called was to the effect that there was no connection 
 between the accident and the death. The County 
 Court judge, however, found that death was due to the 
 accident and awarded compensation. It was held that 
 dependent had not discharged the onus of proving that 
 death was due to the accident. Brown v. Kidman 
 (1911), 4 B.W. C. C. 199. 
 
 Traumatic pneumonia. A healthy and steady work-
 
 62 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 man was employed to pick up cotton waste on the 
 decks of a ship in dock. He went to work at one 
 o'clock and at three 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 v. Berrie (1909), 2 B. W. C. C. 62. 
 
 A workman died of pneumonia. His dependents 
 contended that the pneumonia resulted from lowered 
 vitality caused by an accident to the workman arising 
 out of and in the course of his employment. 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 acci- 
 dent, 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 caus- 
 ing 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 v. Reeve (1910), 
 3 B. W. C. C. 175. 
 
 Mental shock or fright. The workman has been held 
 to have suffered an injury by witnessing the effects of 
 an accident to a fellow workman whereby nervous
 
 TO WHOM ACT APPLIES 63 
 
 Accidental bodily injury 
 
 shock resulted. Yates v. South Kirby, Featherstone & 
 Hemsworth Collieries (1910), 103 L. T. 170; 3 B. W, C. 
 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 physio- 
 logical 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, undoubtedly, 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 neigh- 
 boring stall, and saw what had happened 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
 
 64 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 and this was held to be a personal injury by acci- 
 dent. Id. 
 
 Insanity indirectly resulting from bodily injury. 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 v. Grant & 
 Aldcroft (1905), 7 W. C. C. 113. 
 
 Anthrax, from handling wool. Where a workman con- 
 tracted 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 accident and 
 was entitled to compensation. Brintons, Limited, v. 
 Turvey (1905), A. C. 230, 7 W. C. C. 1. See also H. P. 
 Hood & Son v. Maryland Cas. Co., 206 Mass. 223; 92 
 N. E. 329, holding that contracting glanders from hand- 
 ling hides was an accident. 
 
 Acceleration or aggravation of pre-existing disease. 
 Acceleration and aggravation of a pre-existing disease 
 is an injury caused by accident. Willoughby v. Great 
 Western Ry. Co. (1904), 6 W. C. C. 28. An injury may 
 be caused by an accident although no injury would 
 have been thereby suffered but for the existence of 
 disease which was aggravated by the accident. Lloyd 
 v. Sugg & Co. (1900), 81 L. T. 768; 2 W. C. C. 5. A 
 workman, while employed in a colliery, was injured by 
 a stone falling on his knee. The accident occurred on 
 a cold day, and the applicant took over two hours to 
 get to his home, a distance of a mile and a quarter. 
 Chest trouble and pneumonia supervened, and on an 
 application for compensation medical evidence was 
 given that the applicant suffered from bronchitis and 
 chronic asthma and was unable to work. It was held
 
 TO WHOM ACT APPLIES 65 
 
 Accidental bodily injury 
 
 that the test to be applied was not whether the work- 
 man's diseased condition was a natural or probable 
 result of the accident, but whether it was the result of 
 the accident in the sense that it was occasioned by the 
 debilitated state of the workman immediately after the 
 accident, or whether the accident had not accelerated 
 an existing tendency to disease, or given life to certain 
 latent causes of disease in the workman's body. Ystra- 
 dowen Colliery Co. v. Griffiths (1909), 100 L. T. 869; 2 
 B. W. C. C. 357. 
 
 "An injury which might naturally produce death in 
 a person of a certain temperament or state of health is 
 the cause of his death, if he dies by reason of it, even 
 if he would not have died if his temperament or pre- 
 vious health had been different, and this is so, as well 
 when death comes through the medium of disease 
 directly induced by the injury, as when the injury 
 immediately interrupts the vital processes." Freeman 
 v. Mercantile Mut. Ace. Assn., 156 Mass. 351. 
 
 Inhaling poisonous gases; accelerating disease of long 
 standing. A workman contracted the disease of en- 
 teritis from inhaling sewer gas in the course of his em- 
 ployment. The result was to accelerate long standing 
 heart disease, and incapacitate the man from work before 
 the time at which such heart disease would otherwise 
 have incapacitated him. It was held that this was not 
 a personal injury by accident within the meaning of 
 the Compensation Act. Broderick v. London County 
 Council (1908), 1 B. W. C. C. 219. 
 
 Gas poisoning. A caretaker of an empty house was 
 
 told to lay open the drains, manholes and cesspools for 
 
 inspection. He did this on several occasions in July, 
 
 and becoming ill, died in the following October from 
 
 5
 
 66 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 poisoning contracted from the drains. The County 
 Court judge found that it was not possible to specify 
 the date when he contracted the disease. It was held 
 that the workman had not died from a personal injury 
 by accident within the meaning of the Act; that a 
 disease, although arising out of and in the course of the 
 employment is not a personal injury by accident, if it 
 cannot be shown to have been contracted at a par- 
 ticular time and place. Eke v. Sir William Hart Dyke 
 (1910), 3 B. W. C. C. 482. In the last-mentioned case 
 the court reviewed a large number of decisions on the 
 question of accidents by disease, and stated: "That a 
 mere disease which you could not say was contracted 
 at a particular time, and at a particular place, by a 
 particular accident, or accidents, entitles a man to 
 compensation." A gas fitter inhaled some coal gas, 
 and three days later suffered from paralysis due to 
 cerebral hemorrhage, from which he died shortly after. 
 Seven months previously he had had a transient at- 
 tack of paralysis from the same cause. On his death 
 his widow contended that the death was due to the 
 gas poisoning, but the County Court judge decided 
 against her. On appeal it was held that it was a ques- 
 tion of fact for the County Court judge to decide. 
 Dean v. London & North Western Railway Co. (1910), 
 3 B. W. C. C. 351. 
 
 Enteritis from inhaling noxious gas. A workman 
 engaged in the London sewers contracted the disease 
 of enteritis from inhaling sewer gas. The Court of 
 Appeal held that this was not a personal injury by 
 accident. Broderick v. London County Council (1908), 
 2 K. B. 807; 1 B. W. C. C. 219. A similar decision was 
 made in the case of Eke v. Hart-Dyke (1910), 2 K. B.
 
 TO WHOM ACT APPLIES 67 
 
 Accidental bodily injury 
 
 677; 3 B. W. C. C. 482. In the last-mentioned case the 
 caretaker of an empty house was told to lay open the 
 drams, manholes and cesspools for inspection. He did 
 this on several occasions in July, and becoming ill, 
 died in the following October from poisoning contracted 
 from the drains. The County Court judge found that 
 it was not possible to specify the date when he con- 
 tracted the disease. It was held that the workman had 
 not died from personal injury by accident within the 
 meaning of the Act. 
 
 Pneumonia from inhaling gas in mine from explosion. 
 A miner employed in a mine died from pneumonia caused 
 by the inhalation of gas generated by the explosion. It 
 was held that the death was the result of the accident 
 within the meaning of the Act. Kelly v. Auchenlea 
 Coal Co. (1911), 48 Scotch L. R. 768; 4 B. W. C. C. 417. 
 
 Anaesthetic administered for purpose of operation. A 
 workman has been held to have suffered an accidental 
 injury where disability resulted from an anaesthetic 
 administered for the purpose of an operation. Shirt v. 
 Calico Printers' Association (1909), 2 K B. 51; 2 B. W. 
 C. C. 342. 
 
 Bite of animal. A workman has been held to have 
 suffered an accidental injury by the bite or attack of 
 an animal. Hapelman v. Poole (1908), 25 T. L. R. 155; 
 2 B. W. C. C. 48. 
 
 Lead poisoning. Lead poisoning is not an accident. 
 Steel v. Cammell, Laird & Co. (1905), 7 W. C. C. 9. 
 
 Where an applicant for compensation contended that 
 the death of the workman had been caused by lead 
 poisoning, or its consequences, and it appeared in this 
 particular case that the immediate cause was granular 
 kidney, which might have been brought about by gout,
 
 68 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Accidental bodily injury 
 
 alcoholism, heart-pressure or other complaints, it was 
 held that the claimant did not maintain the onus of 
 proving that the death was caused by lead posioning. 
 Haylett v. Vigor & Co. (1908), 1 B. W. C. C. 282. 
 
 An attack of colic through lead poisoning is not an 
 accident. Williams v. Duncan (1898), 1 W. C. C. 123. 
 
 Opening old wound by strain; septic poisoning. A 
 workman who had undergone an operation returned 
 to work before the operation wound was completely 
 healed, with instructions not to strain himself. He 
 worked at the lever of a machine. A fellow workman, 
 noticing that the machine was stopped, looked for the 
 man and saw that he was talking to the foreman some 
 yards away. It was then seen that blood was flowing 
 freely from the operation wound and soaking into his 
 boots. Septic poison followed, and the man died. In 
 the absence of direct evidence as to what had happened 
 the County Court judge drew the inference that the 
 wound had burst open through the strain of working 
 the lever, and awarded compensation to the depend- 
 ents. It was held on appeal that there was evidence 
 from which the County Court judge could draw this 
 inference. Groves v. Burroughes & Watts (1911), 4 B. 
 W. C. C. 185. 
 
 Germ or poison into system through break in skin. 
 A workman has been held to have suffered an injury by 
 a germ or poison getting into the system through a break 
 in the skin. Higgins v. Campbell & Harrison and Turvey 
 v. Brintons Limited (1904), 1 K. B. 328; 6 W. C. C. 1; 
 the latter affirmed by the House of Lords (1905), A. C. 
 230; 7 W. C. C. 1. 
 
 A piece of coal digging its way under the skin of the 
 knee of a coal miner, who very frequently has to work
 
 TO WHOM ACT APPLIES 69 
 
 Accidental bodily injury 
 
 on his knees, is an accident. Thompson v. Ashington 
 Coal Co. (1901), 3 W. C. C. 21. 
 
 Blood poisoning through use of a hypodermic needle 
 is an accident. Bailey v. Interstate Cas. Co., 8 App. 
 Div. 127; 40 N. Y. Supp. 513, aff'd, 158 N. Y. 723; 53 
 N. E. 1123. 
 
 Poison entering through blister on finger. An injury 
 caused to one of an imperfect physical condition while 
 working in the ordinary way with the usual materials 
 and appliances is not an injury by accident. Therefore, 
 where an engine fitter was fixing steampipe joints for 
 which purpose red lead was used, and in consequence of 
 a blister on his finger the red lead poisoned the finger, 
 it was held that the injury was not caused by an acci- 
 dent. Walker v. Lilleshall Coal Co. (1900), 81 L. T. 
 769; 2 W. C. C. 7. If a germ causes a disease without 
 the necessity of an abrasion of the skin the general rule 
 is that the result is a disease and not an accidental in- 
 jury. Bacon v. U. S. Mutual Accident Assn., 123 N. Y. 
 304. 
 
 Dermatitis caused by using caustic soda without gloves. 
 Dermatitis brought on by washing out ink cans with a 
 solution of caustic soda without the use of proper 
 gloves is not an accident. Cheek v. Harmsworth Bros. 
 (1901), 4 W. C. C. 3. 
 
 Injury to hands of dish washer by caustic soda. A 
 workman has been held to have suffered an injury by 
 washing crockery in hot water with soft soap and caustic 
 soda by a man who, unknown to himself, had a pe- 
 culiarly sensitive skin. Dotzauer v. Strand Palace Hotel 
 (1910), 3 B. W. C. C. 387. In the last-mentioned case 
 a scullion in a hotel was the subject of a disease affect- 
 ing his skin and making it abnormally sensitive. On
 
 70 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 the day he commenced work he washed up crockery for 
 a number of hours in a tank containing hot water, soft 
 soap and caustic soda. His hands became greatly in- 
 flamed, his nails came off, and he was disabled for four 
 and a half months. The Court of Appeal of England 
 held that this was an accident and the mere circum- 
 stance that a perfectly healthy man would not have 
 met with it was no answer at all. 
 
 Erysipelas from wound. There was a dispute between 
 the medical experts as to whether or not a wound in 
 the hand on April 17th could cause erysipelas of the 
 face on July 7th, following. The medical referee was 
 asked the abstract question as to whether or not the 
 diseased organisms could have been latent for so long a 
 time. He said it was possible that the organisms might 
 have lain dormant and subsequently sprung to life if 
 the injured workman was in a devitalized condition. 
 The County Court judge held that the deceased man 
 died from personal injury by accident, and the Appellate 
 Court held that there was no evidence to justify the 
 finding. Hugo v. H. W. Larkins & Co. (1910), 3 B. W. 
 C. C. 228. 
 
 Tight boots causing blood poisoning. Where a work- 
 man was incapacitated by reason of the pressure of a 
 boot which had become too tight for him and that his 
 foot became sore and blood poisoning set in, it was held 
 that the accident did not arise out of the employment 
 and compensation was refused. White v. Sheepwash 
 (1910), 3 B. W. C. C. 382. 
 
 6. " Arising out of and in the course of the employ- 
 ment." 
 All the compensation acts have provisions to the
 
 TO WHOM ACT APPLIES 71 
 
 Arising out of and in the course of the employment 
 
 effect that an employer shall be liable for an injury to 
 an employe only when the accident arose out of and in 
 the course of the workman's employment. Some of 
 them express this condition in the words forming the 
 heading of this paragraph. Others express it in dif- 
 ferent phraseology. An examination of the reports 
 shows that this phrase has been the subject of more 
 discussion and judicial interpretation than any other 
 single portion of the British Compensation Act. The 
 phrase has a double meaning. Or more properly speak- 
 ing there are two conditions attached to it. The acci- 
 dent must "arise out of" the employment, as well 
 as "in the course of" the employment. Thus where a 
 workman during the course of the employment does 
 something entirely foreign to the work which he is 
 employed to do (playing a practical joke, for example) 
 whereby he is injured, this accident could be said to 
 have occurred "during the course of" the employment, 
 but it could not be said to arise "out of" the employ- 
 ment because the workman was not doing anything 
 which he was employed to do when the accident hap- 
 pened. Several variations of this condition will be 
 found in the pages following in this subdivision. The 
 questions of when a man's work begins and when it 
 terminates for the purpose of awarding compensation 
 for injuries have also been the subject of much dis- 
 cussion. As a general proposition the time while a man 
 is going to and from his work is no part of his employ- 
 ment. But there are enough exceptions to this prin- 
 ciple to make it a pregnant source of controversy, as 
 the cases cited hereafter in this subdivision will demon- 
 strate. The other subjects will be found under their ap- 
 propriate topical headings, indicated by words in italics.
 
 72 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 The expression "in the course of the employment" 
 points to the time, place and circumstances under 
 which the accident takes place; it occurs in the course 
 of employment if it occurs while he is doing what a 
 man so employed may reasonably do within a time 
 during which he is employed, and at a place where he 
 may reasonably be during that time. Fitzgerald v. 
 Clarke & Son (1908), 2 K. B. 796; 1 B. W. C. C. 197; 
 Moore v. Manchester Liners (1910), A. C. 498; 3 B. W. C. 
 C. 527. In the last-mentioned case a fireman on board a 
 steamship lying off South Brooklyn went on shore for 
 the purpose of obtaining for himself certain neces- 
 saries which were not provided by the owners of the 
 ship. On returning to the ship he fell off a ladder, which 
 was the only means of access from the dock to the ship, 
 and was drowned. It was held by the House of Lords 
 that the accident arose out of and in the course of the 
 fireman's employment and therefore that the widow 
 was entitled to compensation. 
 
 "The only way to construe the Act is to read it 
 fairly, taking the words in their common and ordinary 
 signification, and * * * the court ought not to strain 
 the language in order to bring in or to exclude any 
 particular case, however arbitrary or unscientific the 
 line of demarcation drawn by the Act may seem to 
 be." Hoddinott v. Newton Chambers & Co. (1900), 3 
 W. C. C. 74. 
 
 Going to and from place of employment. As a general 
 rule a man's employment does not begin until he has 
 reached the place where he has to work, or the scene of 
 his duty, and it does not continue after he has left. 
 The periods of going and returning are generally ex- 
 cluded. Benson v. Lancashire and Yorkshire Rail. Co.
 
 TO WHOM ACT APPLIES 73 
 
 Arising out of and in the course of the employment 
 
 (1904), 1 K. B. 242; 6 W. C. C. 20; Jackson v. General 
 Steam Fishing Co. (1909), A. C. 523; 2 B. W. C. C. 56; 
 Walters v. Stavely Coal & Iron Co. (1911), 105 L. T. 119; 
 4 B. W. C. C. 303; Gilmour v. Dorman, Long & Co. 
 (1911), 105 L. T. 54; 4 B. W. C. C. 279. 
 
 In the case of Jackson v. General Steam Fishing Co. 
 (1909), A. C. 523; 2 B. W. C. C. 56, a workman was 
 employed to watch trawlers as they lay in a harbor. 
 He was on duty for twenty-five hours, during which 
 time he had to provide his own food, and in connection 
 with his duties it was occasionally necessary for him 
 to be on the quay to which the trawlers were moored. 
 In the course of his watch he left the boats and went 
 to a hotel near at hand for some refreshment. He was 
 absent a very short time, had returned to the quay, 
 and while descending a fixed ladder attached to the 
 quay to go on board one of the trawlers, he fell into the 
 water and was drowned. It was held by the House of 
 Lords that the accident arose out of and in the course 
 of the man's employment and that he was entitled to 
 compensation. 
 
 In the case of Walters v. Staveley Coal Co. (1911), 105 
 L. T. 119; 4 B. W. C. C. 303, a miner, proceeding to his 
 work along a footpath prepared by the employers for 
 the workmen's convenience, slipped on some steps at a 
 point about a mile away from the place of employment. 
 There was evidence that the employers knew the steps 
 were not safe. It was held that the accident did not 
 arise in the course of the employment. In the last- 
 mentioned case, Lord SHAW, in a concurring opinion 
 said: "In this case there was a circuitous public road, 
 and there was a short cut from one part of that public 
 road to another. It was optional to the workman to
 
 74 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 take the short cut or not to take it. Only when the 
 point was reached where the short cut was at an end the 
 workman had gone either by it or by the circuitous 
 public road, and not till then, did he reach the place 
 which was the place of his employment. There was no 
 contract or obligation, direct or indirect, on his part, 
 that he should use the short cut or the steps conven- 
 iently provided there. He might reach the place of his 
 employment in any manner he liked. It was not arising 
 out of his employment and not in the course of his em- 
 ployment that he met with his accident. My Lords, I 
 fear to make any general proposition in these cases 
 when I see the use that is made by ingenious and able 
 counsel of propositions laid down in this or any other 
 court. I would venture, however, to say one phil- 
 osophical thing, which is that analogies in matters of 
 fact nearly always fail, and I think it is a dangerous 
 thing in the sphere of law to conjure out of analogies a 
 principle or proposition arising upon judicial dicta which 
 are in any respect in conflict, or to be cited as in con- 
 flict, with the clear propositions and text of a modern 
 statute." 
 
 An accident which occurs when a man is passing along 
 a public highway on his way to the place where he 
 works, is not one arising out of and in the course of his 
 employment. Holness v. Mackay & Davis (1899), 80 
 L. T. 831 ; 1 W. C. C. 13. A man who was employed as 
 a shepherd was on his way to the place where he was to 
 be employed, in a wagon furnished by his employer, 
 and when at a distance of forty yards from the cottage 
 which he was to occupy the wagon was suddenly jerked 
 and the shepherd thrown off, receiving injuries which 
 proved fatal. It was held that the injury did not arise
 
 TO WHOM ACT APPLIES 75 
 
 Arising out of and in the course of the employment 
 
 out of and in the course of the employment, as the 
 employment had not commenced. Whitbread v. Arnold 
 (1908), 99 L. T. 103; 1 B. W. C. C. 317. In the case of 
 Gilmour v. Dorman, Long & Co. (1911), 105 L. T. 54; 
 4 B. W. C. C. 279, a workman was accustomed to go to 
 his work by a footpath which ran over vacant land be- 
 longing to his employers, and afterwards along a rail- 
 way line, to the factory where he was employed. While 
 on his way to work he was injured by slipping on some 
 ice on the vacant land, a quarter of a mile from the 
 place where he had to work. It was held by the Court 
 of Appeal in England that the accident did not arise in 
 the course of his employment. Although no hard and 
 fast rule can be laid down on the subject it may gen- 
 erally be supposed that so long as the workman is law- 
 fully upon premises under the control of his employers, 
 so that a duty exists in respect thereof from them to 
 him, his employment will continue. Thus, it has been 
 held that where a workman is injured on the ground 
 floor of the factory of his employer while going to his 
 work on an upper floor, that this is in the course of 
 his employment and he is entitled to compensation. 
 Holness v. Mackay & Dams (1899), 80 L. T. 831; 1 W. 
 C. C. 13. A workman had to come to the place of his 
 work by a train arriving twenty minutes before work 
 actually commenced, and it was their practice, recog- 
 nized by the employers, to deposit their tickets on the 
 ledge of the office pigeonhole, and then, if so minded, 
 to breakfast at a mess cabin provided by the employers. 
 A workman, while depositing his ticket, was injured 
 by falling into an excavation. It was held that he was 
 entitled to compensation. Sharp v. Johnson & Co. 
 (1905), 92 L. T. 675; 7 W. C. C. 28. A miner was
 
 76 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 injured on his way to work. He was on his employers' 
 land but had not reached the point at which his duties 
 commenced, and the accident happened twenty min- 
 utes before the hour at which work started. The 
 arbitrator decided that the accident did not arise 
 out of and in the course of the employment, and it was 
 held by the Court of Session of Scotland that there was 
 evidence on which the arbitrator was justified in so 
 deciding. Anderson v. Fife Coal Co. (1909), 47 Scotch 
 L. R. 5; 3 B. W. C. C. 539. A miner descended into 
 his pit by the cage and got out at the wrong level. He 
 then descended by a shaft near the cage, and instead of 
 proceeding to his work, he walked to a place some 700 
 feet along a road, which by its nature was very different 
 from his proper road. At this point he was found dead, 
 having been scalded to death by the steam which 
 escaped from the colliery engines. There was no ev- 
 idence to show why he went there. It was held that the 
 accident arose out of and in the course of the employ- 
 ment. Sneddon and others v. Greenfield Coal and Brick 
 Co. (1910), 47 Scotch L. R. 337; 3 B. W. C. C. 557. A 
 collier was injured by a gate swinging back on him. 
 The land on both sides of the gates belonged to his 
 employers and the gates were about 150 yards from the 
 lamp-room to which the collier was first going on his 
 way to work. On a claim for compensation the County 
 Court judge held that the workman was entitled to 
 compensation and that the accident arose out of and in 
 the course of the employment. It was held on appeal 
 that there was evidence to support this finding. Hos- 
 kins v. J. Lancaster (1910), 3 B. W. C. C. 476. A 
 miner's employment has commenced when he has ob- 
 tained his pit lamp and his tallies and is waiting at
 
 TO WHOM ACT APPLIES 77 
 
 Arising out of and in the course of the employment 
 
 the pit brow to descend. Fitzpatrick v. Hindley Field 
 Colliery Co. (1901), 3 W. C. C. 37; 4 W. C. C. 7. Where 
 an engine driver arrived on the premises where he was 
 to start work an hour and a quarter before it was nec- 
 essary for him to be there and in crossing some tracks 
 in returning from a place where he had gone for his own 
 purposes was hit by a train and killed, it was held that 
 the accident did not arise out of the employment. 
 Benson v. Lancashire & Yorkshire Ry. Co. (1903), 89 
 L. T. 715; 6 W. C. C. 20. When an employe arrives at 
 the place of work shortly before the regular time to 
 begin work and is doing anything relating to the em- 
 ployment and is injured, he is entitled to compensation. 
 Sharp v. Johnson & Co. (1905), 92 L. T. 675; 7 W. C. C. 
 28. 
 
 A workman was engaged to load a van, and was 
 promised employment in unloading it at another place 
 if he would be there by the time the van arrived. He 
 agreed to be there, and started on his bicycle, but on 
 the way met with an accident. The County Court 
 judge held that the employment was continuous and 
 awarded compensation. On appeal it was held that 
 there were two separate and distinct employments; one 
 had ended and the other had not begun. The accident, 
 therefore, did not arise out of and in the course of the 
 employment. Perry v. The Anglo-American Decorating 
 Co. (1910), 3 B. W. C. C. 310. 
 
 Tke employment of a workman is not limited to the 
 moment when he reaches the place where he is to be- 
 gin work, and to the moment when he ceases that work. 
 Where, therefore, a workman, when his work for the 
 day was over, without loitering, and with all reason- 
 able speed, left the place where he was working by the
 
 78 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 accustomed and permitted route on the way to his 
 home, and was injured while so doing, it was held that 
 the accident arose in the course of the man's employ- 
 ment and he was entitled to compensation. Gane v. 
 Norton Hill Colliery Company (1909), 100 L. T. 979; 2 
 B. W. C. C. 42. In the last-mentioned case the injured 
 workman was on his way home, after having completed 
 his day's work. There were three ways he could go 
 over the defendant's premises. No directions were 
 given to the man as to which way he should or should 
 not go. The shortest way and the one used by most of 
 the men was over certain parts of the employer's prem- 
 ises, through a doorway, down some steps and across 
 some railway lines, which were on the premises and 
 under the control of the employers. In going in this 
 way the workman was passing under some trucks which 
 had just been safely passed under by other workmen 
 going in the same direction, and while doing so the 
 trucks moved, passing over his legs and crushing both 
 of them, requiring their amputation. It was held that 
 the accident arose out of and in the course of the work- 
 man's employment, and that he was entitled to com- 
 pensation. In the last-mentioned case the court said 
 that it did not wish to lend any color to the suggestion 
 that a workman is entitled to the protection of the act 
 during the whole period necessary to get to his own 
 home from the place where he is employed. But under 
 the peculiar circumstances of that case, it was held 
 that the workman was entitled to compensation. 
 
 A miner who was making his way home from the pit, 
 instead of taking the recognized exit provided by the 
 mine owners for the use of their man, crossed a gang- 
 way on to a dirt bin or waste heap, down which he pro-
 
 TO WHOM ACT APPLIES 79 
 
 Arising out of and in the course of the employment 
 
 ceeded by a steep and rough, and in wet weather very 
 slippery track, not formed in any way but worn down 
 into uneven steps. Near the foot of the slope and 
 while still on his employers' premises, he slipped and 
 fell and was fatally injured. The use of this route was 
 neither sanctioned nor expressly prohibited by the own- 
 ers of the mine, and involved, as the deceased must 
 have known, considerable danger. On these facts it 
 was held that there was evidence to support the ar- 
 bitrators' ruling that the accident did not arise out of 
 and in the course of his employment. Hendry v. The 
 United Collieries (1910), 47 Scotch L. R. 635; 3 B. W. 
 C. C. 567. " While the workman is leaving the place 
 where he is employed, I think that, for the purposes of 
 this Act, his employment would continue. But though 
 his employment may continue for an interval after he 
 has actually ceased working, yet there must come a 
 time when he can no longer be said to be engaged in his 
 employment in such a way that an accident happening 
 to him can be said to have arisen out of and in the 
 course of his employment. There must be a line be- 
 yond which the liability of the employer cannot con- 
 tinue, and the question where that line is to be drawn 
 in each case is a question of fact." Smith v. South Nor- 
 manton Colliery Co. (1903), 1 K. B. 204; 5 W. C. C. 14. 
 Where a workman was killed on his employer's premises 
 while leaving them by a short cut which he had never 
 used before, but which other men were in the habit of 
 using, it was held that his dependents were entitled to 
 compensation. McKee v. Great Northern Railway Co. 
 (1908), 42 Irish L. T. 132; 1 B. W. C. C. 165. A fireman 
 in the service of a railway company was traveling to his 
 home on one of the company's trains after he had
 
 80 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 finished his work, as he had a right to do, and he was 
 last seen with a basket in his hands and his face towards 
 the door; a crash was heard and he disappeared. He 
 was injured so badly that he died. It was held that 
 there was evidence that the accident arose out of and 
 in the course of his employment. Pomfret v. Lancashire 
 & Yorkshire Ry. Co. (1903), 89 L. T. 000; 5 W. C. C. 22. 
 Where a workman, having finished his day's work, wa,s 
 walking home along a private branch railway leading 
 from his employer's colliery to the main line of a railway 
 company, and was knocked down by an engine of his 
 employers 230 yards from the place where he had been 
 working, it was held that he was not entitled to com- 
 pensation. Caton v. Summerlee & Mossend Iron Co. 
 (1902), 39 Scotch L. R. 762. Where the employer 
 contracts, either expressly or impliedly, to provide free 
 carriage by train for the workman to his place of em- 
 ployment, the employment will be held to begin when 
 the workman enters the train, and therefore in case of 
 an accident, the workman is entitled to compensation. 
 Holmes v. G. N. Rail. Co. (1900), 2 Q. B. 409; 2 W. C. C. 
 19. In such a case the employment may even begin or 
 continue while the workman is waiting on the platform 
 for the train so provided. Cremins v. Guest, Keen and 
 Nettle/old (1908), 1 K. B. 469; 1 B. W. C. C. 160. 
 Where the giving to the workman by the employer of 
 a return railway ticket was merely a gratuitous conces- 
 sion by the employer and the workman was in no way 
 obligated to go or return from work on the train, it was 
 held that an accident while the workman was on the 
 way to the place of employment, but before he reached 
 the same, did not arise out of and in the course of the 
 employment. Nolan v. Porter & Sons (1909), 2 B. W.
 
 TO WHOM ACT APPLIES 81 
 
 Arising out of and in the course of the employment 
 
 C. C. 106. Where the employer furnished a train to 
 carry the workmen to and from their work, but did not 
 require that they should ride on this train, it was held 
 that a workman about to enter the train who was 
 pushed off the platform and was killed during the rush 
 of workmen, had suffered an accident while the rela- 
 tion of master and servant existed, and that his widow 
 as a dependent was entitled to recover compensation. 
 Cremins v. Guest, Keen & Nettlefold (1907), 1 B. W. C. 
 C. 160. A colliery company provided a train on their 
 railway to take the workmen from the colliery to their 
 homes. A collier on reaching the point nearest his 
 home, three-quarters of a mile from the colliery, met 
 with an accident, while alighting from the train. It 
 was held that the accident did not arise out of and in 
 the course of the employment. Dairies v. Rhymney Iron 
 Co., 2 W. C. C. 22. An engine cleaner who lived at 
 King's Cross, was carried free by his employers, a rail- 
 way company, to Hornsey. While crossing the tracks 
 for the purpose of getting to the place where he worked, 
 and shortly before the time for commencing work, he 
 was knocked down by a passing train and killed. It was 
 held that the employment commenced when he en- 
 tered the train at King's Cross and that the accident 
 arose out of and in the course of his employment. 
 Holmes v. Great Northern Ry. Co., 2 W. C. C. 19. A 
 workman employed by a farmer, returning home tem- 
 porarily during a storm, was injured while crossing a 
 plank laid over a dyke, and it was held that the accident 
 arose out of and in the course of his employment. 
 Taylor v. Jones (1907), 1 B. W. C. C. 3. 
 
 A fruit picker on piecework was told to stop what she 
 was doing and go to work at another part of the farm. 
 6
 
 82 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 While proceeding as instructed she met with an acci- 
 dent and it was held that it arose out of the employ- 
 ment. Jesson v. Bath (1902), 4 W. C. C. 9. 
 
 A club servant left the club for his own purposes, re- 
 turning about midnight by climbing through a window, 
 and while so doing he was injured. It was held that the 
 accident did not arise out of and in the course of his 
 employment. Watson v. Sherwood (1909), 2 B. W. C. 
 C. 462. 
 
 A workman employed by colliery owners went home 
 to dinner in the middle of the day by the accustomed 
 and permitted route, which was on the land of his em- 
 ployers; being overtaken by a line of cars conveying 
 rubbish to a tip, he attempted to jump on to one of the 
 cars, fell, was run over and killed. In attempting to 
 jump on one of the cars he was transgressing one of the 
 regulations of the colliery. It was held that the accident 
 did not arise out of and in the course of his employ- 
 ment. Pope v. Hill's Plymouth Co. (1910), 102 L. T. 
 633 ; 3 B. W. C. C. 339. 
 
 Getting on and off vessels. A seaman, when off duty, 
 left his vessel on his own business. The vessel was then 
 alongside the quay, but on his return, two hours after- 
 ward, it was some five or six feet from the pier, the top 
 of the rail being about three feet lower than the quay. 
 The vessel had no gangway, but a ladder was used for 
 getting on board. On his arrival at the pier, the sea- 
 man, seeing no ladder, hailed, and, having got no answer, 
 he jumped from the pier to the vessel, with the result 
 that his leg struck against the rail, and he was per- 
 manently injured. It was held that the accident arose 
 out of and in the course of the employment. Kearon v. 
 Kearon (1911), 45 Irish L. T. 96; 4 B. W. C. C. 435.
 
 TO WHOM ACT APPLIES 83 
 
 Arising out of and in the course of the employment 
 
 The workman, a riveter working on a ship in dock, was 
 about to go ashore for his breakfast. When he came on 
 deck he found the vessel was being removed to a dry 
 dock, and was already a short distance from the quay. 
 The gangway had been removed, and there was no 
 other means of getting ashore than by slipping down a 
 rope which still held the vessel to the quay. By means 
 of this rope a fellow workman got ashore safely, and 
 the applicant attempted to follow him. The rope gave 
 way, and he was thrown against the quay wall and in- 
 jured. It was held by the Court of Appeal that there 
 was evidence to support the finding of the County 
 Court judge that the accident arose out of and in the 
 course of the man's employment. Keyser v. Burdick & 
 Co. (1910), 4 B. W. C. C. 87. The deceased was a sea- 
 man on board a steamship and had gone ashore with 
 leave for purposes of his own. The ship was moored to 
 another vessel, which was made fast to the quay, so 
 that, in order to board his own ship, the deceased had 
 first to cross the deck of the other vessel. There was 
 evidence that the deceased, on his return, safely boarded 
 the other vessel, and got on to the gangway between 
 the two ships. The gangway, however, gave way, and 
 he fell into the water and was drowned. It was held 
 that the deceased met his death by an accident arising 
 out of and in the course of his employment. Leach v. 
 Oakley, Street & Co. (1910), 4 B. W. C. C. 91. A work- 
 man was employed to watch trawlers as they lay in a 
 harbor. He was on duty for twenty-five hours, during 
 which time he had to provide his own food, and in con- 
 nection with his duties it was occasionally necessary 
 for him to be on the quay to which the trawlers were 
 moored. In the course of his watch he left the boats
 
 84 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 and went to a hotel near at hand for some refreshments. 
 He was absent a very short time, had returned to the 
 quay, and while descending a fixed ladder attached to 
 the quay to go on board one of the trawlers, he fell into 
 the water and was drowned. The arbitrator found that 
 the accident to the deceased arose out of and in the 
 course of his employment within the meaning of the 
 Act of 1906. It was held by the House of Lords that 
 there was evidence upon which the arbitrator could so 
 find. Jackson v. General Steam Fishing Co. (1909), A. 
 C. 523; 101 L. T. 401 ; 2 B. W. C. C. 56. A fireman on 
 board a steamship lying off South Brooklyn, went on 
 shore for the purpose of obtaining for himself certain 
 necessaries which were not provided by the owners of 
 the ship. On returning to the ship he fell off a ladder 
 which was the only means of access from the quay to 
 the ship and was drowned. It was held by the House 
 of Lords that the accident arose out of and in the course 
 of the man's employment and that therefore his widow 
 was entitled to compensation. Moore v. Manchester 
 Liners (1908), 3 B. W. C. C. 527, rev'g 1 K. B. 417; 2 
 
 B. W. C. C. 87. A seaman in returning to his ship 
 passed over a gangway from the wharf, and had one 
 foot on the rail of the ship and the other on a ladder 
 leading from the rail to the deck, when he overbalanced 
 and fell over the side of the ship and was drowned. It 
 was held that the accident arose out of and in the 
 course of the workman's employment. Canavan v. Own- 
 ers of the Steamship "Universal" (1910), 3 B. W. C. 
 
 C. 355. A steward of a steamship discharging at the 
 port of Montreal, Canada, went on shore in the evening 
 as he was permitted to do. Returning late in the even- 
 ing to his ship, as was alleged, in a state of intoxication
 
 TO WHOM ACT APPLIES 85 
 
 Arising out of and in the course of the employment 
 
 or semi-intoxication, he attempted to board the ship 
 by using the cargo skid or stage, instead of the gang- 
 way. In doing so he slipped and fell and received in- 
 juries from the effect of which he died. It was held that 
 the injury arose out of and in the course of the employ- 
 ment. Robertson v. Allan Brothers & Co. (1908), 98 
 L. T. 821; 1 B. W. C. C. 172. When a ship was lying 
 in Glasgow harbor a seaman went ashore without leave 
 and returned to his ship later in the evening in a state 
 of intoxication. He went to his bunk and was found 
 next morning lying injured at the bottom of the hold of 
 the ship and from these injuries he subsequently died. 
 There was no evidence as to how the man got to the 
 place where he was injured. To reach the place it was 
 necessary for him to pass through a door which was 
 broken or forced open, by whom there was no evidence 
 to show. It was held that there was no evidence that 
 the accident arose out of the employment. O'Brien v. 
 Star Line (1908), 45 Scotch L. T. 935; 1 B. W. C. C. 177. 
 A workman engaged upon a ship, working overtime, 
 went ashore between 9.30 and 10 A. M. to buy some- 
 bread. He was told by the foreman not to go, and 
 could previously, during the interval allowed for tea, 
 have procured the bread. Upon his return, while at- 
 tempting to jump from the quay to the ship, he fell and 
 was killed. It was held that the accident did not arise 
 out of and in the course of the employment. Martin v. 
 Fullerton & Co. (1908), 45 Scotch L. R. 812; 1 B. W. C. 
 C. 168. The second engineer of a steam trawler which 
 was in dry dock at the time, went ashore to his home 
 for dinner. As he returned to the ship he fell into a dry 
 dock and was killed. It was held that the accident did 
 not arise out of and in the course of the engineer's em-
 
 86 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 ployment. Gilbert v. Owners of the "Nizam" (1910), 
 3 B. W. C. C. 455. In the last-mentioned case the court 
 said: "I decline to assent to the view that a ship is in a 
 different position from a factory for this purpose. This 
 is a simple case where a man has been to his own home 
 to get his dinner, and has met with an accident on his 
 way back to the scene of his labors. That question has 
 been raised and decided against the workman, not 
 once, but again and again by this court." 
 
 The captain of a vessel left his ship in Bangor Roads 
 and went to a hotel a hundred yards away from the 
 dock. He returned to the dock at about 11 p. M. and 
 hailed his ship for a boat. He was not heard from for 
 some time, but eventually a boat put off. Before the 
 boat reached him he fell over the dock side and was 
 drowned. The evidence was consistent with his going 
 to the hotel for his own pleasure, or in the course of his 
 employment. It was held that the dependents had not 
 discharged the onus of proving that the accident arose 
 out of and in the course of the employment. Hewitt and 
 Others v. Owners of the Ship "Duchess" (1910), 102 L. 
 T. 204; 3 B. W. C. C. 239. "The workman, who was a 
 sailor, left his ship and went for a week-end to his son's 
 house, which was some considerable way down the 
 river at Poplar. He took his dinner and tea there and 
 he slept there. On the Monday morning he started to 
 rejoin his vessel. On his way he slipped on some steps 
 at the riverside, and injured himself. We certainly 
 cannot go the length of saying that this was an accident 
 arising out of and in the course of this man's employ- 
 ment. The case would be exactly the same if he had 
 slipped on the pavement in the street before he came to 
 the steps. We have pointed out not once or twice but
 
 TO WHOM ACT APPLIES 87 
 
 Arising out of and in the course of the employment 
 
 often that, save in certain exceptional circumstances, 
 the Act does not extend to and protect the workman 
 when on his way from his house to his employment. 
 Still less does it protect him when out for his own 
 pleasure for a week-end." It was held therefore that 
 the accident did not arise out of and in the course of 
 the employer's employment. Kelly v. Owners of the 
 "Foam Queen" (1910), 3 B. W. C. C. 113. Where 
 an employer gave to an employe" a railway ticket and 
 ordered him to report on board ship for work at 7 A. M., 
 and while the workman was on his way to the ship he 
 fell off the dock and was injured, which dock was not 
 under the control of his employer, it was held that 
 the giving of the railway ticket was merely a gratuitous 
 concession by the employers and that it was in no way 
 obligatory on the workman to go or return from his 
 work by train as provided in the ticket, and that there- 
 fore the accident did not arise out of and in the course 
 of the man's employment. Nolan v. Porter and Sons 
 (1909), 2 B. W. C. C. 106. A steward on a steamship 
 had gone ashore with leave. At about 10 P. M. he was 
 passed onto the wharf by the doorkeeper who saw him 
 make his way toward the ship. He was not seen board- 
 ing the gangway, nor was there any evidence that he 
 ever reached it, but the watchman heard a splash in 
 the water and a cry of "Man overboard." When the 
 body was recovered life was extinct. It was held that 
 the applicant for compensation had not discharged the 
 onus of proving that the accident arose out of and in 
 the course of the man's employment. Kitchenham v. 
 Owners of S. S. "Johannesburg" (1910), 4 B. W. C. C. 
 91, affirmed by the House of Lords, 4 B. W. C. C. 311. 
 A workman was descending the side of a ship by a rope
 
 88 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 ladder. The ladder twisted suddenly, he gave a cry, 
 and then fell into the water. He was dead when picked 
 up. The medical evidence was that death was due to 
 heart failure and not to drowning and that the heart 
 was in such a state that any slight exertion might have 
 caused failure. The County Court judge found that 
 death was due to accident arising out of and in the 
 course of the employment, and awarded compensation. 
 It was held on appeal that there was evidence to sup- 
 port the finding. Trodden v. J. McLennard & Sons 
 (1911), 4 B. W. C. C. 190. A captain left his ship and 
 went to a hotel 100 yards from the quay. He returned 
 to the quay and hailed his ship for a boat. After some 
 time, a boat put off, but before it reached the quay the 
 captain fell into the water and was drowned. The 
 evidence was equally consistent with his having gone 
 ashore for his own purposes or for purposes connected 
 with his duties. It was held by the House of Lords that 
 the accident did not arise out of and in the course 
 of the employment. Fletcher v. Owners of Steamship 
 "Duchess" (1911), 4 B. W. C. C. 317. A sailor, re- 
 turning on board his ship after a trip on shore, not con- 
 nected with his employment, fell into the water from 
 steps leading from the gangway, of which they formed 
 part, and was drowned. It was held that this was not 
 an accident arising out of and in the course of the em- 
 ployment. Hyndman v. Craig & Co. (1910), 44 Irish 
 L. T. 11;4B. W. C. C. 438. 
 
 A seaman while returning on board ship from the 
 shore, when the ship was lying in port, slipped on the 
 gangway and fell over the gangway ropes, striking his 
 head in falling, and received injuries which proved 
 fatal. There was no evidence to show why the de-
 
 TO WHOM ACT APPLIES 89 
 
 Arising out of and in the course of the employment 
 
 ceased had gone there, whether on the service of the 
 ship or for his own purposes, or with or without per- 
 mission. It was held that the evidence being equally 
 consistent that the deceased was or was not on the 
 ship's business, the applicant for compensation had not 
 discharged the onus resting upon her of showing that 
 the injury arose out of and in the course of the employ- 
 ment. McDonald v. Owners of Steamship " Banana" 
 (1908), 1 B. W. C. C. 185, 
 
 Injuries at mealtime. A workman when employed 
 during the night shift took his supper for the sake of 
 warmth seated on a tank in the pump room. His em- 
 ployers provided a dining room for their workmen, but 
 they were not bound to take their meals there. In 
 getting off the tank the workman fell through a hole in 
 the tank, was scalded and received injuries from which 
 he died. The workman was not expressly prohibited 
 from going on to the tank, but the evidence was that 
 he had no right to be there, and if found there he would 
 have been dismissed. It was held that the accident did 
 not arise out of the workman's employment. Brice v. 
 Edward Lloyd (1909), 2 K. B. 804; 2 B. W. C. C. 26. 
 The court distinguished the case of Blovelt v. Sawyer 
 (1904), 1 K. B. 271; 6 W. C. C. 16. In the last men- 
 tioned case the accident happened to a bricklayer dur- 
 ing the dinner hour. It appeared that there was no 
 absolute rule as to the workmen going or staying in the 
 building during the dinner hour, so that they were at 
 liberty to stay there and eat their dinner if they so 
 desired. At the dinner hour the workman employed on 
 the building under course of erection remained in the 
 building and sat down under a wall to eat his dinner. 
 The wall fell on him while he was sitting there and caused
 
 90 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 the injury for which he claimed compensation. It was 
 held that he was entitled to compensation, as the ac- 
 cident arose out of and in the course of the man's em- 
 ployment. 
 
 Where, by an arrangement between a railway com- 
 pany and certain employes, they were allowed to go to 
 a cabin on the railway company's premises for certain 
 meals, and one of such employes was returning from the 
 cabin after having a meal there, and was knocked down 
 by a car which was being shunted on one of the com- 
 pany's tracks, it was held that the injury arose out of 
 and in the course of the employment. Earnshaw v. 
 Lancashire & Yorkshire Ry. Co. (1903), 5 W. C. C. 28. 
 
 A night watchman who left his box and went into a 
 shanty where tools were kept to cook and eat his food 
 and was injured by the falling of the shanty was held 
 to have been injured by accident arising out of and in 
 the course of his employment. Morris v. Lambeth 
 Borough Council (1905), 8 W. C. C. 1. 
 
 Relieving nature. During the dinner hour a man met 
 with an accident when returning from a place where he 
 had gone to relieve nature and it was held that the 
 accident arose out of and in the course of the employ- 
 ment. Elliott v. Rex (1904), 6 W. C. C. 27. In the 
 last-mentioned case the court refused to follow the de- 
 cision in the case of Pearce v. London & South Western 
 Ry. Co. (1899), 2 W. C. C. 152, where it was held that 
 when a man was injured when going to relieve nature 
 during the breakfast hour that the accident did not 
 arise out of the employment. 
 
 A workman instead of going to the proper place for a 
 necessary purpose went into a confined space under- 
 neath a table engine and stepped into boiling water in
 
 TO WHOM ACT APPLIES 91 
 
 Arising out of and in the course of the employment 
 
 a cistern which was sunk into the ground to receive the 
 escaping hot water from the engine. It was held that 
 the accident did not arise out of and in the course of 
 employment. Thomson v. Flemington Coal Co. (1911), 
 48 Scotch L. R. 740; 4 B. W. C. C. 406. 
 
 Doing forbidden acts. A brusher in a mine, who had 
 finished his work for the day, jumped on to a hutch in 
 order to ride to the pit bottom. On the way he was 
 knocked oft" the hutch by his head coming into contact 
 with two crowns which were below the ordinary pit 
 level, and was injured. A special rule, of which the 
 injured man was cognizant, forbade miners from riding 
 on the hutches. It was held that the accident did not 
 arise out of the employment. Kane v. Merry & Cun- 
 inghame (1911), 48 Scotch L. R. 430; 4 B. W. C. C. 
 379. A workman who is injured while doing something 
 which he has been absolutely forbidden to do cannot 
 be said to be injured while in the course of his employ- 
 ment. Whiteheadv. Reader (1901), 3 W. C. C. 40. The 
 rules of a pit provided that explosives capable only of 
 being fired by detonators should be used ; that the det- 
 onators should be securely kept and issued only to 
 shot-firers; and that every shot should be fired by a 
 competent person appointed in writing to perform the 
 duty. On the occasion in question, after the shot-firer 
 had left the pit, a miner, who had a detonator in his 
 possession which, however, he had not received from 
 the shot-firer, started to fire a shot. This was not his 
 duty, and was in direct opposition to orders. In the 
 course of the operation an explosion occurred whereby 
 he was killed. It was held that the accident did not 
 arise out of and in the course of the employment. Kerr 
 v. William Baird & Co. (1911), 48 Scotch L. R. 646; 4
 
 92 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 B. W. C. C. 397. A message boy, who was employed in 
 delivering fish at a kitchen situated on the third floor 
 of an infirmary, was injured while making his way from 
 the ground floor by means of a hoist. There was a 
 notice at the side of the hoist to the effect that it was 
 only to be used by servants of the institution, and 
 worked only by those specially authorized by the 
 directors, but it was not proved that the boy had read 
 the notice, or had his attention directed to it, though it 
 was proved that he had been cautioned against using 
 the hoist. It was held that the accident did not arise 
 out of and in the course of his employment. M'Daid 
 v. Steel (1911), 48 Scotch L. R. 765; 4 B. W. C. C. 412. 
 A miner was warned by a fireman not to remain at 
 work at a certain place, as blasting operations were 
 about to commence. He left the place and went to 
 work at some distance away. Here he remained at 
 least an hour. Blasting operations commenced, and 
 subsequently the workman was found dead among the 
 debris. There was no evidence as to how he got there. 
 The arbitrator found that the injury did not arise in 
 the course of his employment. It was held that there 
 was evidence to support the finding. Traynor v. Robert 
 Addie & Sons (1910), 48 Scotch L. R. 820; 4 B. W. C. 
 
 C. 357. A workman was employed as a "damper" in 
 a colliery. He worked some distance away from the 
 pitshaft, and on the day of the accident he, with others, 
 got into an empty tub on an endless rope, to ride to the 
 spot where they were working. This method of transit 
 was expressly forbidden, and fines were inflicted for 
 disobedience, but the rule was habitually disregarded. 
 On the journey the deceased raised his head above the 
 level of the tub, and became pinned between the roof
 
 TO WHOM ACT APPLIES 93 
 
 Arising out of and in the course of the employment 
 
 and truck, receiving injuries which proved fatal. It 
 was held by the Court of Appeal that the accident did 
 not arise out of the workman's employment. Barnes 
 v. The Nunnery Colliery Co. (1910), 4 B. W. C. C. 43. 
 A workman in a power house dusted the switchboard. 
 It was no part of his duty, and he was expressly for- 
 bidden to do so. In doing this he fell against the live 
 gear, and sustained injuries. It was held that the acci- 
 dent did not arise out of the employment. Jenkinson 
 v. Harrison Ainslie & Co. (1911), 4 B. W. C. C. 194. 
 A boy was employed to hand balls of clay in molds to 
 a molder, and was told not to touch the machinery. 
 Having nothing to do for the moment, he attempted 
 to clean the machinery and was thereby injured. It 
 was held that the accident did not arise out of and in 
 the course of the employment. Lowe v. Pearson (1899), 
 79 L. T. 654; 1 W. C. C. 5. 
 
 A workman employed in a coal mine as a drawer, was 
 working in a level from which an "upset" was being 
 driven. On the day of the accident the fireman dis- 
 covered an outbreak of gas in the "upset," and accord- 
 ingly placed a board across the entrance, chalking upon 
 it, "No road up here." Such a board or fence was the 
 usual mode of warning persons that it was dangerous to 
 enter the place so fenced. The workman understood 
 what the putting up of the board meant, and that it 
 was dangerous to work in the "upset." He required 
 a pick, and knowing that one had been left in the up- 
 set, he went to get it and passed over or under the 
 fence with a naked light in his cap. An explosion took 
 place and he was killed. It was held that the accident 
 arose out of the employment. Conway and another v. 
 Pumpherston Oil Co. (1911), 48 Scotch L. R. 632; 4
 
 94 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 B. W. C. C. 392. The court followed the case of 
 Whitehead v. Reader (1901), 2 K. B. 48, where the fol- 
 lowing rule is laid down: "I agree in what has already 
 been pointed out, that it is not every breach of a 
 master's orders that would have the effect of termin- 
 ating the servant's employment so as to excuse the 
 master from the consequences of the breach of his 
 orders. We have to get back to the orders emanating 
 from the master to see what is the sphere of employ- 
 ment of the workman, and it must be competent to the 
 master to limit that sphere. If the servant acting 
 within the sphere of his employment violates the order 
 of his master, the latter is responsible. It is, however, 
 obvious that a workman cannot travel out of the sphere 
 of his employment without the order of his employer 
 to do so; and if he does travel out of the sphere of his 
 employment without such an order, his acts do not 
 make the master liable either to the workman under 
 the Workmen's Compensation Act, 1897, or to third 
 persons at common law." 
 
 A collier was sent to drill a hole from above into a 
 seam, in order to draw off gases and render the seam 
 safe. The seam itself was marked off as forbidden 
 meanwhile. The man asked if he might go into the 
 seam to see if the drill was running straight, and was 
 told that he must not. He, nevertheless, went and was 
 suffocated. It was held that there was evidence to 
 support the finding of the County Court judge, that 
 the accident arose out of and in the course of the em- 
 ployment. Harding v. Brynddu Colliery Co. (1911), 
 2 K. B. 747; 4 B. W. C. C. 269. 
 
 Doing acts for which the workman is not employed. A 
 boy employed in a spinning mill injured himself while
 
 TO WHOM ACT APPLIES 95 
 
 Arising out of and in the course of the employment 
 
 cleaning machinery in motion. The judge found, as a 
 fact, that he was not employed to clean the machinery. 
 It was held that the accident did not arise out of the 
 employment. Naylor v. Musgrave Spinning Co. (1911), 
 4 B. W. C. C. 286. A workwoman, employed solely to 
 work one machine, scratched her hand on a machine of 
 another sort. It was not explained how she came to be 
 at the other machine. Blood poisoning followed, and 
 she died. It was held that the County Court judge 
 was not justified in inferring that the accident arose 
 out of the employment. Cronin v. Silver (1911), 4 B. 
 W. C. C. 221. An engine driver left his engine when it 
 was standing at rest, and crossed the line in order to 
 communicate with the fireman of another engine on 
 business of his own not in any way concerning his work 
 or his employers. On his way back to his engine he 
 was knocked down by a truck and was killed. It was 
 held that the accident did not arise out of or in the 
 course of the man's employment within 1 (1) of the 
 Act of 1897. (House of Lords), Reed v. Great Western 
 Ry. Co. (1908), 99 L. T. 781; 2 B. W. C. C. 109. A 
 workman going home to dinner through his employ- 
 ers' docks, attempted to climb on a car of a railway 
 which traversed a portion of the docks, and in doing so 
 he fell and received permanent injuries. The arbitrator 
 found that he did not attempt to climb on the car for 
 any object of his employers, but for his own pleasure, 
 and it was held that the accident did not arise out of 
 the employment. Morrison v. Clyde Navigation Trus- 
 tees (1908), 46 Scotch L. R. 38; 2 B. W. C. C. 99. A 
 domestic servant, who was outside the door of her em- 
 ployer's house drying her hair, returned in response to 
 an order, to the house to take charge of a baby in a
 
 96 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 cradle within a couple of feet of the fire. She con- 
 tinued the operation of drying her hair; her sleeve was 
 loose and caught fire and from the injuries she died. 
 No one witnessed the accident, but according to a 
 statement made by the girl herself after the happening 
 of the occurrence, her clothes caught fire while she was 
 drying her hair. It was held that the accident did not 
 arise out of and in the course of her employment. 
 Clifford v. Joy (1909), 43 Irish L. T. 193; 2 B. W. C. C. 
 32. Where a customer in a hotel went into the kitchen, 
 where he had no business to be and made a rush at the 
 cook, who, in trying to avoid him, put her arm through 
 a glass door and was seriously hurt, it was held that 
 this was not an accident to the cook arising out of the 
 employment. Murphy v. Berwick (1909), 43 Irish L. 
 T. 126; 2 B. W. C. C. 103. A boy who had charge of 
 the handle of a machine, lifted off the cover over some 
 pinion wheels and played with them, with the result 
 that his hand was caught in the wheels and the end of 
 one of his fingers was torn off. He had orders not to 
 lift the cover or touch the pinion wheels. It was held 
 that the accident did not arise out of and in the course 
 of the employment. Furniss v. Gartside & Co. (1910), 
 3 B. W. C. C. 411. A stoker on a locomotive engine 
 received by mistake the wages of another man. He 
 left his engine and went over to an engine on which the 
 other man was working, in order to give him these 
 wages. This engine was traveling about five miles an 
 hour. The workman attempted to board the engine by 
 grasping the rails at the side of the doorway, missed the 
 step and sustained personal injuries by the wheels of 
 the engine passing over his foot. It was held that the 
 attempt to board the engine while in motion was ob-
 
 TO WHOM ACT APPLIES 97 
 
 V 
 
 " Arising out of and in the course of the employment 
 
 viously dangerous and wholly unnecessary, and that 
 the accident did not arise out of and in the course of 
 the employment. Williams v. The Wigan Coal and 
 Iron Co. (1909), 3 B. W. C. C. 65. A workman sent 
 on an errand loitered on the way back and wasted time 
 with friends, so that he took two hours to go about 
 a half a mile, at the end of which he suffered an acci- 
 dent, and it was held that it did not arise out of 
 and in the course of the employment. Bates v. Dairies' 
 Executors (1909), 2 B. W. C. C. 459. A laborer in 
 a mine was, without instructions, acting as a collier 
 and was injured, and it was held that the accident 
 did not arise out of and in the course of his employ- 
 ment. Edwards v. International Coal Co. (1899), 5 W. 
 C. C. 21. A girl, eighteen years of age, acting as she 
 thought in her master's interest, left her work to start 
 an engine, which was in charge of a person who was not 
 present. Several of her companions warned her that 
 she ought not to touch it. She was injured in starting 
 the engine, and it was held that the accident did not 
 arise out of and in the course of the employment. 
 Losh v. Evans & Co. (1902), 5 W. C. C. 17. An accident 
 which occurs to a workman while doing something for 
 his own pleasure, foreign to his duty and his employer's 
 interest, does not arise out of and in the course of the 
 employment. Smith and another v. The Lancashire & 
 Yorkshire Ry. Co. (1899), 79 L. T. 633; 1 W. C. C. 1. 
 
 Where two boys were employed in threshing, they 
 exchanged positions with the knowledge of the foreman 
 in charge, and one of them was injured. It was held 
 that such injury occurred during the course of the boy's 
 employment. Cambrook v. George (1903), 5 W. C. C. 
 26. 
 
 7
 
 98 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 Obeying orders which workman is not bound to obey. 
 An accident which occurs while a man is complying 
 with an order which, although he knows or ought to 
 know he need not obey, because it is against the rules, 
 but which is given to him by one from whom he re- 
 ceived his orders, may, nevertheless, be an accident 
 arising out of and in the course of the employment. 
 Statham v. Galloways Limited, 2 W. C. C. 149. 
 
 Acting on orders supposed to be authoritative. A boy 
 thirteen years of age, whose duty was to do all sorts of 
 things under the direction of a foreman, was untruth- 
 fully told by another man that the foreman said he was 
 to do certain work, and the boy did it, in the course of 
 which he was injured, and it was held that the accident 
 arose out of and in the course of his employment. 
 Brown v. Scott (1899), 1 W. C. C. 11. 
 
 Acting on an emergency. A boy was employed to 
 grease the wheels and axles of railway trucks. While 
 waiting for trucks to come up he thought the switch was 
 against the engine, and began to pull the lever in order 
 to open it and was injured. It was held that there was 
 evidence of an accident arising out of and in the course 
 of his employment. Harrison v. Whitaker Bros., 2 W. 
 C. C. 12. 
 
 A workman was employed by a lion tamer to look 
 after the baggage, clean out lion cages, and generally 
 make himself useful, but it was no part of his duty to 
 feed lions. One afternoon the workman was left in sole 
 charge of the cages of lions, with orders to see that no 
 harm came to them or anyone else by reason of their 
 fierceness. One of the lions got out of a cage and into a 
 dressing room, but there was no evidence to show how 
 it happened. The workman went into the dressing
 
 TO WHOM ACT APPLIES 99 
 
 Arising out of and in the course of the employment 
 
 room and tried to drive the lion back into the cage, 
 when the lion turned on him and killed him. In a 
 claim by the dependents against the employer under 
 the Compensation Act of 1906, the County Court judge 
 dismissed the claim, being of the opinion that the facts 
 were consistent only with the deceased having inter- 
 fered with the lion for some purpose of his own, there 
 being no evidence to support the theory that the lions 
 had fought or that the deceased had acted on an 
 emergency. It was held on appeal, however, that as 
 the deceased had been left in charge, it was his duty to 
 get the lion back into the cage, and that as he was 
 killed in the discharge of his duty, the accident arose 
 out of and in the course of his employment. Hapelman 
 v. Pook (1908), 25 T. L. R. 155; 2 B. W. C. C. 48. 
 
 Authority for a servant to act on an emergency in 
 his master's interest may be implied. Where a work- 
 man was injured in attempting to stop his master's 
 runaway horse, it was held that the accident arose out 
 of and in the course of the employment, although his 
 work was wholly unconnected with the horses. Rees 
 v. Thomas (1899), 80 L. T. 578; 1 W. C. C. 9. 
 
 A man employed by the owner of a canal boat, as 
 driver, who was forbidden by his employer to take part 
 in the steering or management of the boat, was drowned 
 while engaged in steering. A boatman who had been 
 temporarily in charge of the horse had deserted a short 
 time before the accident, and the other boatman who 
 was also master of the boat, then decided to drive, 
 telling the deceased at the same tune to steer. It was 
 held that no emergency had arisen which justified the 
 deceased in violating the orders of his employer in 
 steering the boat, and that therefore the accident did
 
 100 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 not arise out of and in the course of the employment. 
 Whelan v. Moore (1909), 43 Irish L. T. 205; 2 B. W. C. 
 C. 114. 
 
 Saving life of another. An accident occurring while 
 making an attempt to save the life of a fellow workman 
 was held to arise out of and in the course of the em- 
 ployment. Matthews v. Bedworth (1899), 1 W. C. C. 
 124. 
 
 Larking, joking or fooling. A boy, set to clean a 
 machine at rest, was larking with another boy, and 
 accidently started the machine, thereby injuring him- 
 self. It was held that the accident did not arise out of 
 the employment. Cole v. Evans, Son, Lescher & Webb 
 (1911), 4 B. W. C. C. 138; following Furniss v. Gartside 
 & Co., 3 B. W. C. C. 411. A domestic servant while 
 engaged in the performance of her duties was struck on 
 the eye by a child's ball playfully thrown at her by a 
 fellow servant, the child's nurse, with the result that 
 she almost completely lost the sight of the eye. It was 
 held that the accident did not arise out of the employ- 
 ment within the meaning of 1 (1) of the Act of 1906. 
 Wilson v. Laing (1909), 46 Scotch L. R. 843; 2 B. W. 
 C. C. 118. Some workmen, as a practical joke, put the 
 hook of their employers' crane, which they were work- 
 ing, through the neckcloth of a fellow workman who 
 was at the time engaged in his work on his employers' 
 wharf, and commenced to draw him up through the 
 warehouse. The man held the chains with his hands as 
 long as he could, but eventually had to let go his hold, 
 and fell a considerable distance and was seriously in- 
 jured. It was held that the injury did not arise out of 
 the employment. Fitzgerald v. Clarke & Son (1908), 
 99 L. T. 101 ; 1 B. W. C. C. 197. Where one workman,
 
 TO WHOM ACT APPLIES 101 
 
 Arising out of and in the course of the employment 
 
 in the spirit of horseplay had placed another in a very 
 dangerous situation, and a third workman going to his 
 rescue, was seriously injured, it was held that the work- 
 man who took the risk, was noi injured while perform- 
 ing any of the duty owing to his employers and that 
 therefore the injury did not arise out of and in the 
 course of the employment. Mullen v. D. Y. Stewart & 
 Co. (1908), 45 Scotch L. R. 729; 1 B. W. C. C. 204. 
 The applicant for compensation, one Shaw, had for no 
 apparent reason pushed another workman named Dil- 
 worth against a moving rope. Dilworth involuntarily 
 swung up one hand, in which he held a hammer, to pre- 
 vent falling over the moving rope, and this hammer hit 
 the applicant over the eye and injured him so badly 
 that he lost the sight of the eye. It was held that the 
 accident did not arise out of the employment. Shaw 
 v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81. 
 
 Injury by fellow workman who is violating law at time 
 of injury. The fact that an injury is caused by a fellow 
 workman who has violated the Factory Act, and upon 
 whom a fine has been inflicted because of such violation, 
 is no reason for denying compensation to the employe 
 who has been injured. Gibson v. Dunkerley Brothers 
 (1910), 3 B. W. C. C. 345. 
 
 Malicious injury by another workman. A workman 
 was struck in the eye by a piece of iron maliciously 
 thrown by another workman at a third employe", and 
 it was held that the accident did not arise out of the 
 employment. Armitage v. Lancashire and Yorkshire Ry. 
 Co. (1902), 86 L. T. 883; 4 W. C. C. 5. 
 
 Engine driver hit by stone thrown by boy from bridge. 
 An injury to an engine driver in being hit by a stone 
 thrown by boys from an overhead bridge is an accident
 
 102 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 arising out of the employment. Challis v. London & 
 South Western Ry. Co. (1905), 7 W. C. C. 23. 
 
 Lockjaw resulting from nail in foot. A gardener while 
 digging in his employer is garden, was injured by a nail 
 piercing his foot through his boot, and died subse- 
 quently from tetanus. It was held that the accident 
 arose out of and in the course of his employment, and 
 his dependents were entitled to compensation. Walker 
 v. Mullins (1908), 42 Irish L. T. 168; 1 B. W. C. C. 
 211. 
 
 Placed in position of peculiar danger. It is not enough 
 for a workman to assert that an accident which has 
 caused personal injury to him would not have happened 
 if he had not been in the particular place where it 
 occurred. But it must be shown that the accident 
 arose because of something he was doing in the course 
 of his employment, or because it placed him in a posi- 
 tion of peculiar danger, and the risk incurred was there- 
 fore incidental to his employment. Craske v. Wigan 
 (1909), 100 L. T. 8; 2 B. W. C. C. 35. 
 
 Struck by lightning. A workman, engaged on the road 
 during a storm, whose duty was to clean out the gullets 
 to prevent the water flooding the road, was struck by 
 lightning. It was held that the death was not occa- 
 sioned by accident arising out of the employment. 
 Kelly v. Kerry County Council (1908), 42 Irish L. T. 23; 
 1 B. W. C. C. 194. But see Andrew v. Failsworth In- 
 dustrial Soc. (1904), 90 L. T. 611; 6 W. C. C. 11, where 
 a bricklayer on a scaffold, twenty-three feet from the 
 ground, was struck by lightning and it was held that 
 this was an accident. 
 
 Bite of cat on master's premises at meal time. A work- 
 man was taking his mid-day meal in his employer's
 
 TO WHOM ACT APPLIES 103 
 
 Arising out of and in the course of the employment 
 
 stable, when he was bitten by one of the stable cats. 
 The bite resulted in blood poisoning and it became 
 necessary to amputate some of the fingers. It was held 
 that the accident arose out of and in the course of the 
 employment. Rowland v. Wright (1908), 1 B. W. C. C. 
 192. 
 
 Special policeman and messenger injured while going 
 to and from place of employment. A railway policeman, 
 a part of whose duties it was to take cash boxes and 
 deposit the contents in a bank in the town, was return- 
 ing from such a trip when he was crossing a railway 
 track over a way which was sometimes used by the 
 employes. An engine being shunted down these tracks 
 hit and killed the policeman. It was held that the 
 accident arose out of and in the course of the employ- 
 ment and that his dependents were entitled to compen- 
 sation. Grant v. Glasgow and South Western Railway 
 Co. (1907), 45 Scotch L. R. 128; 1 B. W. C. C. 17. 
 
 Suffocation in burning house. A servant residing in 
 her mistress's house was suffocated in her bedroom 
 through a fire which broke out in the house. She 
 shared the room with a lame cook, and she and the 
 cook were suffocated. It was held that the accident 
 arose out of and in the course of the employment. 
 Chitty v. Nelson (1908), 2 B. W. C. C. 496. 
 
 Drawing inference from unexplained injuries. An 
 engine driver, over sixty years old, was working about 
 the engine at a railway station. He was next seen lying 
 between the engine and the platform with his two legs 
 doubled up, exhibiting signs of agony, and he died a 
 few minutes later. There was no evidence to show how 
 he got into this position, but there was evidence to 
 show that on at least three previous occasions when the
 
 104 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 train was at a station, the deceased had collapsed in 
 a faint, and had lain unconscious for some minutes. 
 A few days before the occurrence the deceased was 
 examined by the physician of the company and was 
 presumably passed as physically fit for his position. 
 The County Court judge held that the accident arose 
 out of and in the course of his employment. It was 
 held that there was sufficient evidence to justify the 
 finding. Fennah v. Midland & Great Western Railway 
 of Ireland (1911), 45 Irish L. T. 192; 4 B. W. C. C. 440. 
 In this case the court said: "The judge is entitled to 
 draw an inference, but he cannot arrive at it by guess 
 or conjecture; and the onus is, in the first instance, on 
 the applicant to furnish evidence from which an in- 
 ference in the applicant's favor can be legitimately 
 drawn." 
 
 A train of three cars pushed by an engine overtook 
 another train on the same tracks, and the two trains 
 ran buffer to buffer as if coupled. The brakeman of the 
 rear train tried to get on the front train, but slipped 
 between the buffers and was killed. There was no 
 direct evidence as to his reasons for trying to board the 
 front train, but there was evidence that he would shortly 
 have had to alight to shift some points (switches), 
 and that it was much easier to alight from the front 
 than from the rear train, the former having steps 
 while the latter had none. From this the County 
 Court judge drew the inference that the attempt was 
 made in order to alight more easily, and therefore held 
 that the accident arose out of the employment. It was 
 held on appeal that the County Court judge was en- 
 titled to draw this inference.' Astley v. R. Evans & Co. 
 (1911), 104 L. T. 373; 4 B. W. C. C. 209; affirmed by
 
 TO WHOM ACT APPLIES 105 
 
 Arising out of and in the course of the employment 
 
 the House of Lords, R. Evans & Co. v. Astley (1911), 4 
 B. W. C. C. 319. 
 
 While a ship was on the high seas the cook fell over- 
 board and was drowned. The weather was perfectly 
 calm at the time. It was daylight and the ship was 
 steady. There was no evidence to show how the de- 
 ceased had fallen overboard. It was held that the 
 dependent had failed to discharge the onus upon her 
 of proving that the accident arose out of and in the 
 course of the employment of the deceased, there being 
 no justification for inferring that the accident arose out 
 of the employment because it was admitted that it 
 happened in the course of the employment. Bender v. 
 Owners of Steamship "Zent" (1909), 100 L. T. 639; 2 
 B. W. C. C. 22. In the last mentioned case one of the 
 judges stated by way of dictum that if, on a stormy 
 night, one of the watches of the ship was missing, the 
 inference to be drawn would be that the most natural 
 cause of the accident was the increased danger to which 
 the seaman was subjected in the course of his employ- 
 ment, and that therefore the accident arose out of his 
 employment. 
 
 Commercial travelers. As a rule commercial travelers 
 may be regarded as acting in the course of their employ- 
 ment so long as they are traveling on their employer's 
 business, including the whole period of time between 
 their starting from and returning to their place of 
 business or home. Dickinson v. Barmak (1908), 124 
 L. T. Newspaper, 403. 
 
 Collector going from house to house. An agent who is 
 making a house-to-house collection of premiums and 
 meets with accidental injury is entitled to compensation. 
 Refuge Assurance Co. v. Millar, 49 Scotch L. R. 67.
 
 106 
 
 Arising out of and in the course of the employment 
 
 Collector using bicycle in employment without or direc- 
 tion or prohibition of employer. A canvasser and col- 
 lector, employed to go round calling on customers, 
 usually went on his bicycle. This was not necessary, 
 but his employers who knew of the practice, neither 
 ordered him to do so, nor forbade him to do it. While 
 traveling on a bicycle he collided with a tramcar and 
 was killed. .It was held that the accident arose out of 
 the employment. Pierce v. The Provident Clothing and 
 Supply Co. (1911), 104 L. T. 473; 4. B. W. C. C. 242. 
 
 A salesman and collector while riding in a street 
 upon a bicycle, in the course of his employment, was 
 kicked on the knee by a passing horse and injured. It 
 was held that the accident arose out of the employ- 
 ment. M'Neice v. Singer Sewing Machine Company 
 (1911), 48 Scotch L. R. 15; 4 B. W. C. C. 351. 
 
 Heart failure. A workman collapsed at his work, and 
 died the same day from angina pectoris. The evidence 
 was that his heart was in a bad state, and that the 
 attack might have been caused by exertion, or might 
 have been due to natural causes. It was held, reversing 
 the decision of the County Court judge, that the de- 
 pendents had not discharged the onus of proving that 
 the accident arose out of the employment. Hawkins v. 
 Powell's Tillery Steam Coal Co. (1911), 104 L. T. 365; 
 4 B. W. C. C. 178. 
 
 Reaching to recover pipe dropped from wagon. A 
 workman was employed as a laborer in connection with 
 loading and unloading wagons, and accompanying 
 them while being hauled by a traction engine from one 
 quarry to another. While sitting on a wagon which was 
 being so hauled, he dropped his pipe, and, in attempt- 
 ing to get down to recover it, he lost his balance and
 
 TO WHOM ACT APPLIES 107 
 
 Arising out of and in the course of the employment 
 
 fell in front of the wheels of the wagon, which went 
 over his leg, fatally injuring him. It was held that the 
 accident arose out of and in the course of the employ- 
 ment. M'Lauchlan v. Anderson (1911), 48 Scotch L. 
 R. 349; 4 B. W. C. C. 376. The court applied the rule 
 laid down by the Lord Chancellor in the case of Moore 
 v. Manchester Liners (1910), A. C. 498, as follows: 
 "I think an accident befalls a man 'in course of his em- 
 ployment if it occurs while he is doing what a man so 
 employed may reasonably do within a time during 
 which he is employed, and at a place where he may 
 reasonably be during that time to do that thing." The 
 court added "a workman of his sort may reasonably 
 smoke, he may reasonably drop his pipe, and he may 
 reasonably pick it up again." 
 
 Cause of injury not incidental to employment. A lady's 
 maid, in the course of her employment, was sewing at 
 an open window, through which an insect flew into her 
 face. To defend her eyes she quickly put up her hand, 
 which accidentally struck and permanently injured her 
 eye. It was held that the injury was not a personal 
 injury by accident arising out of the employment. 
 Craske v. Wigan (1909), 100 L. T. 8; 2 B. W. C. C. 
 35. 
 
 Rebuilding station not employment on railway. Re- 
 building stations is work " merely ancillary or incidental 
 to and is no part of or process in the trade or business 
 carried on by" a railway company. Pearce v. London 
 and South Western Ry< (1900), 82 L. T. 487; 2 W. C. C. 
 47. 
 
 Employment in a refreshment room at a station not em- 
 ployment on railway. Employment in a refreshment 
 room at a railway station is not employment on or in
 
 108 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Arising out of and in the course of the employment 
 
 or about a railway. Milner v. Great Northern Ry. Co. 
 (1900), 82 L. T. 187; 2 W. C. C. 51. 
 
 Going to designated place to receive pay. A workman 
 engaged as a laborer on the public roads was required 
 to go for his pay to the tramway depot situated in a 
 public road some distance away. The workman was 
 paid for the time occupied in going to and going from 
 the pay place. When returning to his work, after re- 
 ceiving his wages, he mounted a tram car, but finding 
 that it did not travel to the place where his work was 
 situated, he got off and was struck by a passing cart 
 and injured. It was held by the Court of Appeal in 
 England that the injury was one arising out of and in 
 the course of the man's employment. Nelson v. Belfast 
 Corporation (1908), 42 Irish L. T. 223; 1 B. W. C. C. 
 158. 
 
 A workman will be held to be acting in the course of 
 his employment, when, having ceased actual work, he 
 returns to the premises to obtain his pay. Riley v. 
 W. Holland & Sons (1911), 1 K. B. 1029; 4 B. W. C. C. 
 155. Even though on such ceasing of actual work the 
 relation of master and servant is terminated. Riley v. 
 W. Holland and Sons (1911), supra; Molloy v. South 
 Wales Anthracite Colliery Co. (1910), 4 B. W. C. C. 
 65. 
 
 A mill-hand, whose employment had ended, attended 
 at the employer's mill to receive her wages a few days 
 later, in accordance with the usage of the trade. She 
 met with an accident while leaving. It was held that 
 the accident arose out of and in the course of the em- 
 ployment. Riley v. W. Holland & Sons (1911), 104 
 L. T. 371 ; 4 B. W. C. C. 155. 
 
 A miner who left off work at 5 A. M. on Saturday
 
 TO WHOM ACT APPLIES 109 
 
 Arising out of and in the course of the employment 
 
 morning, but would have resumed work on the Sunday 
 night following, went to the works at 12.30 mid-day on 
 Saturday to receive his wages, and while proceeding on 
 his employers' premises with this purpose he was in- 
 jured by a railway engine which ran through the em- 
 ployers' premises; it was held that the accident arose 
 out of and in the course of his employment. Lowry v. 
 Sheffield Coal Co. (1907), 24 T. L. R. 142; 1 B. W. C. 
 C. 1. 
 
 Where a workman was required to go in a tram car to 
 a depot, situated on a public road some distance away 
 from his work to secure his pay and he received wages 
 during the time he was on the journey, it was held that 
 a personal injury received by the workman by being 
 hit by a wagon when getting off the wrong tram car 
 which he had entered by mistake, was an injury arising 
 out of and in the course of his employment. Nelson v. 
 Belfast Corporation (1908), 42 Irish L. T. 223; 1 B. W. 
 C. C. 158. 
 
 A collier received his pay-note on Saturday. Being 
 dissatisfied with the amount, he spoke to the manager, 
 who referred him to the under-manager. The latter 
 could not be seen until Monday. The collier came on 
 Monday at mid-day, not intending to resume work un- 
 less the dispute was settled in his favor, and saw the 
 under-manager, who did not give in. The collier then 
 proceeded to leave, but was knocked down by a coal 
 wagon and killed. It was held that the accident did 
 not arise out of, nor in the course of the employment. 
 Phillips v. Williams (1911), 4 B. W. C. C. 143. 
 
 Returning to place of employment to get tools. A work- 
 man a few days after leaving his work obtained leave to 
 go down into the mine to bring up his tools, and while
 
 110 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 there for that purpose met with an accident. The 
 County Court judge found that the accident arose out 
 of and in the course of the man's employment with the 
 colliery owners, and awarded him compensation. The 
 employer appealed on the ground that the judge had 
 misconceived the facts. The employer contended that 
 the finding of fact should have been on the evidence 
 that the workman had ceased to be their servant, and 
 had met with the accident while in the mine on his own 
 business. The Court of Appeal decided against the 
 employer on the ground that the appellate court had no 
 jurisdiction to interfere with the findings of fact of the 
 County Court. Molloy v. South Wales Anthracite 
 Colliery Co. (1910), 4 B. W. C. C. 65. 
 
 Remaining on property after suspension from work. A 
 collier after he was suspended from work remained in a 
 portion of the mines where he was told not to be and 
 there met with an accident about two hours after his 
 suspension. It was held that the accident arose out 
 of and in the course of the employment. Smith v. 
 South Normanton Colliery Co. (1902), 88 L. T. 5; 5 
 W. C. C. 14. 
 
 6. Who is a " workman " within the meaning of the 
 Compensation Acts. 
 
 Various questions have arisen between partners, 
 share-workers, contractors and sub-contractors and 
 others as to when a man is a " workman," or an "em- 
 ploye"," so as to be entitled to compensation in case of 
 injury. The old decisions on the question of when the 
 relation of master and servant exists are, of course, to 
 a certain extent, applicable here. The decisions on the 
 cubject arising directly under the compensation prin-
 
 TO WHOM ACT APPLIES 111 
 
 Who is a " workman" 
 
 ciple have been cited below. Of course it does not 
 necessarily follow that the compensation principle 
 applies to all cases where the relation of master and 
 servant, or employer and employe, exists. Some of the 
 acts specifically exclude certain occupations such for 
 example as farm laborers, domestic servants and casual 
 employes. Others only apply to certain hazardous 
 occupations leaving all others under the old employers' 
 liability laws. The particular statute under which the 
 question arises must first be consulted. After this is 
 done a study of the cases cited hereinafter will mate- 
 rially aid the practitioner in arriving at a correct con- 
 clusion. 
 
 Workman injured before act takes effect but dies after 
 statute effective. A stereotyper in the employment of a 
 newspaper, showed, early in 1907, symptoms of lead 
 poisoning. He finally left the employment on June 22, 
 1907, and eventually died on September 14, 1907. The 
 Act of 1906 came into operation on July 1, 1907. It 
 was held that the provisions of the Act were not ap- 
 plicable, since the deceased was not at the date of the 
 commencement of the Act in the employment of the 
 respondents, or of any one else, and that accordingly 
 his widow was not entitled to compensation. Greenhill 
 v. The Daily Record, Glasgow (1909), 46 Scotch L. R. 
 483 ; 2 B. W. C. C. 244. 
 
 Unauthorized employment by agent of employer. An 
 injured man was engaged by another workman. The 
 employer of such workman only authorized him to 
 employ a boy. It was held that the employment of an 
 old man, when the employer only authorized the en- 
 gagement of a boy, prevented the applicant being held 
 to be a workman under a contract of service with the
 
 112 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 respondent. McClelland v. Todd (1909), 43 Irish L. T. 
 J. 75; 2 B. W. C. C. 472. 
 
 Member of employer's family. A son, employed by 
 his father, lived with him and paid him board and 
 lodging. He was injured while absent for several 
 weeks on his father's business. It was held that he was 
 a member of his employer's family, dwelling in his 
 house, and was therefore not a workman within the 
 Act. M'Dougall v. M'Dougall (1911), 48 Scotch L. R. 
 315; 4 B. W. C. C. 373. 
 
 Vessel worked on shares. Two decisions in the Court 
 of Appeal in England in which different decisions were 
 reached by the same judges, have left in some doubt the 
 question whether the master of a ship who sails the 
 same on shares with the owners, is an employe of the 
 owners. In the case of Boon v. Quance, No. 1 (1909), 
 102 L. T. 443; 3 B. W. C. C. 106, the Court of Appeal 
 of England held that the master was not the employe 
 of the owner. In that case the captain, who sailed a 
 small vessel with a crew of three under the thirds or 
 sharing system, was at liberty to take any cargoes to 
 any place he pleased, the owner receiving one-third of 
 the gross receipts and doing necessary repairs to the 
 ship. The captain received the remaining two-thirds, 
 and had to pay and feed the crew (whom he engaged) 
 and also pay harbor dues. The vessel went down with 
 all hands and the captain's dependents claimed com- 
 pensation. It was held that there was no contract of 
 service between the captain and the owners and conse- 
 quently the dependents were not entitled to compensa- 
 tion. 
 
 In the subsequent case of Jones v. Owners of the Ship , 
 " Alice and Eliza" (1910), 3 B. W. C. C. 495, the crew
 
 TO WHOM ACT APPLIES 113 
 
 Who is a "workman" 
 
 of a small schooner consisted of the captain, a mate and 
 sometimes a boy. The master, in returning to the 
 schooner at night, fell from the dock and was drowned. 
 The claimant's evidence was that the captain received 
 two-thirds of the income from the operation of the 
 vessel for his services. The owner did not submit any 
 evidence, but contended that under the doctrine an- 
 nounced in the case of Boon v. Quance, No. 1, supra, 
 there was no contract of hiring and that therefore the 
 captain's dependents could not maintain a right to com- 
 pensation. The court awarded compensation neverthe- 
 less, distinguishing the two cases. The line of demarca- 
 tion between them seems to be that in the Boon case 
 the evidence was that the captain had full control of 
 the ship and paid to the owner one-third of the receipts. 
 While in the Jones case the only evidence before the 
 court was that the master was remunerated by the pay- 
 ment to him of two-thirds of the gross receipts. The court 
 commented on the failure of the owner to give any 
 evidence at the trial and said that under the testimony 
 given there was a distinction between the two cases. 
 In a later case the doctrine of the decision in Boon v. 
 Quance is reaffirmed. Thus a vessel was sailed under 
 the " sharing system." The captain had authority to 
 trade between any ports he pleased, the owner having 
 no control over him in this matter. The owner re- 
 ceived one-half of the gross receipts, after deducting 
 port charges, etc., and the captain retained the re- 
 mainder, out of which he paid the crew's wages. It 
 was held that there was no contract of service between 
 the owner and the captain, and that the latter's widow 
 was not entitled to compensation. Hughes v. Postle- 
 thwaite (1910), 4 B. W. C. C. 105. 
 
 8
 
 114 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 A firm of fish-curers engaged A to work a "flitboat" 
 belonging to them, and authorized him to find another 
 man to go along with him. A engaged B to work under 
 him on the boat, which was not in any sense a fishing 
 boat, but was used for carrying cargo between the cur- 
 ing stations and vessels lying off shore and landing 
 goods from steamers. A and B were to be remunerated 
 by one-third each of the gross earnings of the boat, the 
 remaining third going to the owners. The boat was 
 maintained by the owners, and both the men and the 
 boat were subject to their orders. When not required 
 by the owners he worked for other curers, such work 
 being undertaken by A as skipper on behalf of the boat, 
 and the rates charged being the same as those paid by 
 the owners to the boat for similar work. When the 
 men were not employed afloat, the owners, whenever 
 possible, supplied them with work ashore. No part of 
 the capital embarked was supplied by A or B, nor were 
 they liable for any loss that might be incurred. In the 
 course of his employment as boatman, B was drowned 
 and it was held that he was not a partner but a work- 
 man in the sense of the Act, and therefore his depend- 
 ents were entitled to compensation. Jamieson v. Clark 
 (1908), 46 Scotch L. R. 73; 2 B. W. C. C. 228. 
 
 A member of the crew of a trawler, which is worked 
 on shares, and who is therefore a coadventurer, is not 
 entitled to compensation where he does some other act 
 voluntarily which is in connection with his regular 
 work. Whelan v. Great Northern Steam Fishing Co. 
 (1909), 100 L. T. 912; 2 B. W. C. C. 235. 
 
 A person who owned ten sixty-fourth shares of a 
 trading schooner was employed as a master by the 
 managing owner and met his death while in the course
 
 TO WHOM ACT APPLIES 115 
 
 Who is a "workman" 
 
 of his employment. It was held that the absence of 
 any proof of partnership or joint-adventure in a course 
 of trading, the master was a workman and his de- 
 pendents were entitled to recover compensation from 
 the managing owner. Carswell v. Sharpe and Others 
 (1910), 47 Scotch L. R. 335; 3 B. W. C. C. 552. 
 
 An engineer, on a steam fishing vessel, who was in- 
 jured, was remunerated by */24 share of the net profits 
 of a catch, with a guarantee, by the owners of the vessel, 
 that should his profit fall short of 30s. a week, they 
 would make it up to that amount. It was held that the 
 workman was " remunerated by a share," and therefore 
 not entitled to compensation, as the word "solely" is 
 not to be read into the 7 (2) of the Act. Admiral 
 Fishing Co. v. Robinson (1910), 102 L. T. 203; 3 B. W. 
 C. C. 247. 
 
 Where one G, a member of a fishing vessel, was in- 
 jured while the vessel was at sea and engaged in fishing, 
 and it appeared that he was compensated by a share of 
 the receipts from the trip, based as follows: From the 
 gross price of the fish sold 'after any trip the owners of 
 the vessel were entitled to deduct commission, discount, 
 and other expenses pertaining to the trip, and the net 
 balance remaining was then divided into fourteen 
 shares, of which G received one-eighth share. While 
 in port and employed in cleaning or making repairs he 
 was paid a daily wage of 5s. It was held that G was 
 remunerated by a share of the profits of the gross earn- 
 ings of the working of the fishing vessel, and was not 
 entitled to a recovery of compensation under 7 (2) of 
 the Act. Aberdeen Steam Trawling & Fishing Co. v. 
 Gill (1907), 45 Scotch L. R. 247; 1 B. W. C. C. 274. 
 
 Driver of taxi-cab operated on shares. A taxi-cab driver
 
 116 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 occasionally took a cab out for the day from the owners' 
 yard. He paid the owners 75% of his receipts, and 
 accepted certain conditions as to the use of a uniform 
 and the purchase of petrol. There was little or no con- 
 trol exercised over him, although the words " servant" 
 and " dismissal" occurred on notices issued by the 
 owners to the drivers and the public. It was held, by 
 the House of Lords, that the question of whether or not 
 he was a workman was one of fact and that there was 
 evidence to support the finding of the County Court 
 judge that the contract between the parties was not a 
 contract of service and that the driver was accordingly 
 not a workman within the Compensation Act. Bates- 
 Smith v. General Motor Cab Co. (1911), A. C. 188; 4 B. 
 W. C. C. 249, aff'g (1910), 3 B. W. C. C. 500. In the 
 last-mentioned case it was remarked that it might well 
 be that, as between third parties, the driver was the 
 agent of the proprietor, whereas between themselves 
 the relation was that of a bailor and bailee. 
 
 A taxi-cab driver took out a cab owned by the re- 
 spondents from their yard each day. The contract be- 
 tween the parties was that the driver paid over to the 
 respondents 75% of his daily takings, retaining 25% 
 for himself, less the price of petrol which he purchased 
 from the respondents. There was a considerable 
 amount of evidence as to the relationship between the 
 parties. The County Court judge held that the driver 
 was employed by the respondents and that the contract 
 was one of service. It was held that there was no 
 evidence to justify this finding and compensation was 
 denied by the Court of Appeal. Doggett v. Waterloo 
 Taxi-Cab Co. (1910), 102 L. T. 874; 3 B. W. C. C. 371. 
 In the last-mentioned case the court said: "The posi-
 
 TO WHOM ACT APPLIES 117 
 
 Who is a "workman" 
 
 tion of the driver of a taxi-cab is, in most respects, 
 identical with the position of the driver of a horse-cab. 
 It has been held by a series of authorities by which we 
 are bound that the relation of a proprietor of a horse- 
 cab and a driver is not in ordinary circumstances one 
 of master and servant; although as between a member 
 of the public injured through the negligence of the 
 driver the proprietor is liable. * * * The contract be- 
 tween the proprietor and the driver is for the day on 
 which the taxi-cab is taken out, as the learned judge 
 finds. The driver is not bound to come the next day, 
 and if he does come the proprietor is not bound to let 
 him have a taxi-cab. He is not paid anything as wages. 
 He is accountable to the proprietor for 75% of the tak- 
 ings, his own remuneration being a sum equal to 25% 
 of the takings. This mode of remuneration tends 
 against, and not in favor of, the view that he is a serv- 
 ant. The proprietor exercises no control over the 
 driver, who can go when and where he pleases. * * * 
 I think that the relation was that of bailment, although 
 it may possibly be contended that the parties were co- 
 adventurers. In the above observations I dealt only 
 with the facts of this particular case. There may be 
 cases in which the proprietor of a taxi-cab exercises such 
 an amount of control over the driver as to justify the 
 conclusion that the relation of master and servant 
 exists." The court further remarked that the case of 
 Rex v. Solomons (1909), 2 K. B. 980, apparently fur- 
 nished an instance of the exception. 
 
 Independent contractor. A man who verbally agreed 
 to break steel and clear cinders at so much per ton, and 
 who employed five or six men to assist him and was 
 paid weekly, was held to be an independent contractor
 
 118 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 and not a workman within the meaning of the act. 
 Vamplew and Others v. Parkgate Iron & Steel Co. (1903), 
 88 L. T. 756 ; 5 W. C. C. 114. 
 
 A man was engaged by a firm of timber merchants to 
 bring a horse belonging to him and drag logs of timber 
 from the side of a ship which was being unloaded in the 
 harbor to a place where the logs were stored. He re- 
 ceived a certain sum per day for himself and his horse, 
 and he might have received that sum had he employed 
 some one else to drive the horse. He was under no 
 obligation to come on any particular day and he was 
 told not to come until he was wanted. It was held that 
 he was not a workman in the sense of the Act, but an 
 independent contractor and therefore not entitled to 
 compensation. Chisholm v. Walker & Co. (1908), 46 
 Scotch L. R. 24; 2 B. W. C. C. 261. 
 
 A person who contracts to do or get done work at a 
 fixed price is not a workman within the meaning of the 
 Act. Simmons v. Faulds (1901), 3 W. C. C. 169. 
 
 A quarryman was employed under a written agree- 
 ment that he should be paid a certain sum per ton of 
 material worked, his employers supplying him with the 
 necessary tools. He engaged and discharged men to 
 work under him. He ended his employment, but re- 
 sumed it again upon his employers assuring him that he 
 should be compensated in case he was injured by acci- 
 dent. It was held that there was evidence that he was 
 a workman within the meaning of the Act and not an 
 independent contractor. Evans v. Penwyllt Dinas 
 Silica Brick Co. (1901), 4 W. C. C. 101. 
 
 Partners. When partners entered into an agreement 
 that one of their number should act as a working fore- 
 man and he received 33s. a week for his services as
 
 TO WHOM ACT APPLIES 119 
 
 Who is a "workman" 
 
 such in addition to his share of the profits it was held 
 that his widow was not entitled to compensation from 
 the other partners because of the death of such foreman 
 partner by accident, as he was not a workman within 
 the meaning of the Act. Ellis v. Ellis & Co. (1905), 92 
 L. T. 718; 7 W. C. C. 97. 
 
 Policeman injured while acting as fireman. Where a 
 police constable was acting as a fireman under an Act 
 of Parliament, it was held that he was acting as a mem- 
 ber of a police force, and was not a workman within 
 the meaning of 13 of the Act. Sudell v. Blackburn 
 Corporation (1910), 3 B. W. C. C. 227. 
 
 Manager. A certified manager of a colliery receiving 
 400 a year with house rent free, who does no manual 
 labor, is not a workman. Simpson v. Ebbw-Vale Steel, 
 Iron & Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101. 
 
 Graduate chemist. A graduate and master of science 
 of Manchester University engaged under a written con- 
 tract as a chemist in a chemical factory, whose duties 
 were largely the making of laboratory experiments and 
 who, in connection therewith, did considerable manual 
 labor was held not to be a workman within the British 
 Act of 1897. Bagnall v. Levinstein (1906), 96 L. T. 184; 
 9 W. C. C. 100. 
 
 Law writer. Injury during lunch hour. A law writer 
 was injured in the street during the hour allowed for 
 his lunch. It was held that a law writer was within the 
 act, but that the luncheon hour is not part of his period 
 of employment, and therefore compensation was re- 
 fused. McKrill v. Howard & Jones (1909), 2 B. W. C. 
 C. 460. 
 
 Professional football player. A professional football 
 player is a workman within the meaning of 13 of the
 
 120 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a "workman" 
 
 Act. Walker v. Crystal Palace Football Club (1909), 101 
 L. T. 645; 3 B. W. C. C. 53. 
 
 Persons employed by charitable organization out of 
 charity. A charitable institution which had instituted a 
 labor yard, and which, in return for work done therein 
 to persons out of employment, gave such persons their 
 board and lodging and occasionally trifling sums of 
 money, was held not to be employers as to one of the 
 persons who had performed work under the rules stated, 
 as the applicant had not proved a contract of service 
 between himself and the institution. The question 
 whether or not the institution carried on a trade or 
 business was left open. Burns v. Manchester & Salford 
 Wesleyan Mission (1908), 1 B. W. C. C. 305. A distress 
 committee, which provides temporary work for an 
 applicant is an employer within the meaning of the 
 Workmen's Compensation Act and a person injured 
 is entitled to compensation. Gilroy v. Mackie and 
 Others (Leith Distress Committee) (1909), 46 Scotch L. 
 R. 325; 2 B. W. C. C. 269. The Central Body under 
 the Unemployed Workmen Act of 1905, are "em- 
 ployers" within the meaning of the Compensation Act, 
 and when a workman employed by them is killed, his 
 widow is entitled to compensation. Porton v. Central 
 (Unemployed) Body for London (1908), 100 L. T. 102; 
 2 B. W. C. C. 296. A blind man was injured while em- 
 ployed in the industrial department of an institute for 
 the blind. This department was supported partly by 
 charitable contributions received by the institute. The 
 institute gave the man, in respect of his services, board, 
 lodging, and 5 shillings a month, and received on his 
 account charitable and parochial assistance which came 
 to a few pounds less than the amount it expended on
 
 TO WHOM ACT APPLIES 121 
 
 Who is a casual employe 
 
 him. It was held that the man was a workman. Mac- 
 Gillivray v. The Northern Counties Institute for the Blind 
 (1911), 48 Scotch L. R. 811; 4 B. W. C. C. 429. 
 
 A dispensary medical officer employed by Guardians 
 of the Poor was held not to be a workman, as there was 
 no contract of service between him and an employer 
 within the meaning of 13 of the Compensation Act, 
 and that therefore when such medical officer was killed, 
 his dependents were not entitled to compensation. 
 Murphy v. Enniscorthy Board of Guardians (1908), 42 
 Irish L. T. 246; 2 B. W. C. C. 291. 
 
 7. Who is agricultural worker. 
 
 A skilled carpenter employed on a farm as handy 
 man, doing fence-work, harvesting and rick-making, 
 and for three or four months a year acting as game- 
 keeper may be a workman in agriculture. Smith v. 
 Coles (1905), 93 L. T. 754; 8 W. C. C. 116. 
 
 8. Who is a casual employe. 
 
 The word "casual" is from the Latin casualis, 
 meaning an accident; happening or coming to pass 
 without design and without being foreseen or expected ; 
 coming without regularity. The word " casualty" 
 has the same origin. The application of the word in the 
 British Compensation Law has caused much discussion. 
 
 Window cleaner. The employment of a window 
 cleaner, at irregular intervals, to clean the windows of 
 a dwelling house, although the same person may have 
 been engaged, when required, for a period of some 
 years, is casual employment only. Hill v. Begg (1908), 
 1 B. W. C. C. 320. A window cleaner had been for 
 some years in the habit of cleaning, about once a 
 month, the windows of the respondent's private house.
 
 122 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Who is a casual employ^ 
 
 The respondent was a medical man, and used some 
 part of his house for the purposes of the profession. No 
 formal contract existed, but the window cleaner called 
 at or about the expected periods and was admitted and 
 did the work. It was found, as a fact, that the respond- 
 ent might at any time have engaged any other window 
 cleaner, or refused admission to the window cleaner in 
 question. It was held that the employment was of a 
 casual nature and was not employment for the purposes 
 of the employer's trade or business. Rennie v. Reid 
 (1908), 45 Scotch L. R. 814; 1 B. W. C. C. 324. 
 
 Laborer employed to do whitewashing. A laborer em- 
 ployed to do whitewashing and to be paid according to 
 the amount of work done, the employer supplying the 
 laborer with money to buy the necessary materials, is a 
 workman in whose favor compensation should be 
 awarded. Bargewell v. Daniel (1907), 123 L. T. J. 487; 
 9 W. C. C. 142. 
 
 Woman employed occasionally as domestic. A woman 
 was employed to work at a particular house on Friday 
 of every week and on Tuesdays in alternate weeks. 
 She suffered personal injuries in the course of such em- 
 ployment. It was held that the employment was not 
 of a casual nature and that the woman was a workman 
 within the meaning of the Act, and therefore entitled 
 to compensation. Dewhurst v. Mather (1908), 1 B. W. 
 C. C. 328. 
 
 Carpenter employed to do repairs. A carpenter was 
 employed to do repairs in the private house of the re- 
 spondent, and after these repairs were finished was en- 
 gaged to cut down some trees in the grounds near the 
 house. While engaged in the latter work he was killed, 
 and it was held that the employment was of a casual
 
 TO WHOM ACT APPLIES 123 
 
 Serious and willful misconduct 
 
 nature and compensation was refused. M'Carthy v. 
 Norcott (1908), 43 Irish L. T. 17; 2 B. W. C. C. 279. 
 
 Bricklayer employed to repair farm building. A 
 farmer required some tiles put on the roof of his granary 
 and employed a bricklayer to put them on. During the 
 work the bricklayer was injured and he afterward 
 claimed compensation. It was held that although the 
 work was of a casual nature it was for the purpose of 
 the employer's trade or business, and therefore the 
 workman was entitled to receive compensation. Blyth 
 v. Sewell (1909), 2 B. W. C. C. 476. 
 
 Repairing private residence. Where a casual workman 
 was employed to assist a slater in repairing the roof of 
 a house used solely for the purposes of business, and was 
 killed by falling from the roof, it was held that his de- 
 pendents were entitled to compensation. Johnston v. 
 Monasterevan General Store Co. (1908), 42 Irish L. T. 
 268; 2 B. W. C. C. 183. In the course of the opinion, 
 in the last-mentioned case, it is said: "The Act of 1906 
 widened the liability of employers, and the scope of the 
 Act was intended to include new classes of workmen in 
 addition to those benefited by previous acts. Suppose 
 the shutters of a shop got jammed and could not be 
 opened, and a carpenter or locksmith was employed to 
 open them, it is manifest that that would be for the 
 purposes of the employer's business." 
 
 9. Serious and willful misconduct. 
 
 All the Compensation Acts of the various States con- 
 tain some provision on this subject, but there is no 
 uniformity in such provisions. Whatever the language 
 used the idea of denying compensation if serious and 
 willful misconduct causes the injury, is present in all of
 
 124 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Serious and willful misconduct 
 
 these statutes. The decisions of the English, -Irish, 
 Scotch and Canadian courts therefore are especially 
 applicable to this feature of the laws of the various 
 commonwealths. 
 
 Where a workman knowingly breaks a rule made by 
 the employer in the interests of the safety of the work- 
 men and for their own protection and that of the public 
 such act on his part is evidence of serious and willful 
 misconduct within the meaning of the Act. Bist v. 
 London & South Western Ry. Co. (1907), 96 L. T. 750; 
 9 W. C. C. 19. The last-mentioned case was decided 
 by the House of Lords. The accident occurred on 
 March 4, 1905, prior to the enactment of the present 
 Compensation Law. In that case an engine-driver was 
 killed by being hit by a bridge over the track. He had 
 climbed back on the tender, for the purpose, it was con- 
 tended, of getting a better quality of coal, to make the 
 engine steam better so lost time could be made up. The 
 company had issued a rule forbidding the driver or 
 fireman to leave the running board while the engine was 
 in motion. The court held that the violation of this 
 rule was such serious and willful misconduct as pre- 
 cluded the dependents of the driver from recovering 
 compensation. The section of the British Compensa- 
 tion Act under which this decision was made was 
 amended in the revision of 1906 [ I, (2) (c)] by adding 
 the words in italics in the paragraph below, making it 
 read as follows: 
 
 "If it is proved that the injury to a workman is 
 attributable to the serious and willful misconduct of 
 the workman, any compensation claimed in respect of 
 that injury shall, unless the injury results in death or 
 serious and permanent disablement, be disallowed."
 
 TO WHOM ACT APPLIES 125 
 
 Serious and willful misconduct 
 
 The words in italics have added a feature to the 
 British Act which has been characterized as follows: 
 
 "If a boiler was exploded through the criminal 
 carelessness of an intoxicated engineer or fireman, it 
 might demolish the plant, bring ruin as well as death to 
 the employer, fatal and serious injuries to many em- 
 ployes, but the cause of the catastrophe, if disabled for 
 life or killed, would find himself or his dependents a 
 preferred creditor against the employer's estate, and 
 his claim would be on the same footing with that of his 
 fellow workmen to whom he had brought death or in- 
 jury." l 
 
 Determined from nature of conduct not consequences. 
 Whether or not misconduct is serious is to be deter- 
 mined from its nature, and not from its consequences. 
 Johnson v. Marshall Sons & Co., 22 T. L. R. 565. 
 
 Misconduct is not serious merely because the actual 
 consequences in the particular case are serious; the 
 misconduct must be serious in itself. Any neglect is 
 serious within the meaning of the British Compensation 
 Act, which in the view of reasonable persons in a posi- 
 tion to judge, expose anybody, including the person 
 guilty of it, to the risk of serious injury. Or if the injury 
 to be feared is of such a character that it may be de- 
 scribed as serious, then the case is within the language 
 of the Act. Hill v. Granby Consolidated Mines (1906), 
 12 B. C. 118; 1 B. W. C. C. 436. 
 
 In the expression "serious and willful misconduct," 
 the word "serious" applies to the misconduct itself and 
 not to the actual consequence of it; and the word 
 "willful" imports that the conduct was deliberate and 
 not merely a thoughtless act on the spur of the moment. 
 1 Accident Prevention and Relief, Schwedtman and Emery, p. 204.
 
 126 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Serious and willful misconduct 
 
 Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 
 8 W. C. C. 10. 
 
 Question of fact not law. A finding of serious and 
 willful misconduct is a finding of fact not of law. 
 Donnachie v. United Collieries (1910), 47 Scotch L. R. 
 412. 
 
 Proof of negligence not sufficient. Proof of negligence 
 merely is not sufficient to maintain a charge of serious 
 and willful 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 willful misconduct which would preclude the 
 boy from recovering compensation. Reeks v. Kynoch 
 (1901), 4 W. C. C. 14. 
 
 Right to dismiss as test of serious and willful miscon- 
 duct. Whether an employer would be justified in dis- 
 missing a workman without notice is a test of whether 
 or not misconduct is serious and willful. Johnson v. 
 Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 
 10. 
 
 Obvious dangers. Where a miner was injured in 
 crossing the shaft bottom, which was regarded as no- 
 toriously dangerous, although there was no special rule 
 prohibiting miners from crossing it, it was held that he 
 had been guilty of willful and serious misconduct and 
 was not entitled to compensation. Leishman v. William 
 Dixon (1910), 47 Scotch L. R. 410; 3 B. W. C. C. 560. 
 
 A boy removed a safety roller attached to a wringing
 
 TO WHOM ACT APPLIES 127 
 
 Serious and willful misconduct 
 
 machine and was injured in consequence. He had been 
 in the habit of removing the roller and working without 
 it although cautioned not to do so. There was some 
 rather weak evidence that the uses of the roller had 
 been explained to him. It was held that the injury 
 was not attributable to serious and willful misconduct. 
 Darbon v. Gigg (1904), 7 W. C. C. 32. 
 
 A miner while on his way out of the mine was ad- 
 vised to enter a manhole to allow a " journey" of cars 
 to pass him. He disregarded the advice and was over- 
 taken and killed by the cars. It was held that he was 
 guilty of serious and willful misconduct. John v. 
 Albion Coal Co. (1901), 4 W. C. C. 15. The above en- 
 titled case was decided before the enactment of the 
 Compensation Law of 1906. In the previous Compen- 
 sation Law serious and willful misconduct was sufficient 
 to preclude a workman or his dependents from recover- 
 ing compensation. In the amendment of 1906, how- 
 ever, it was provided that should serious and willful 
 misconduct result in serious and permanent disablement 
 or death, compensation should be awarded notwith- 
 standing the misconduct. 
 
 The proper and safe way to proceed from a lower to a 
 higher level of a mine was by a ladder, although the 
 miners habitually used a sump shaft provided for raising 
 metals. At the time of the accident a miner was leaving 
 by way of the sump shaft. It was held that the accident 
 arose out of and in the course of the employment, and 
 was not due to serious and willful misconduct. Douglas 
 v. United Mineral Mining Co. (1900), 2 W. C. C. 15. 
 
 Drunkenness. Drunkenness when it occasions the 
 injury may amount to serious and willful misconduct. 
 Bradley v. Salt Union (1906), 122 L. T. J. 302; 9 W. C. C.
 
 Serious and willful misconduct 
 
 31. Mounting a ladder while drunk, with a long piece 
 of timber on one shoulder, and out of bravado, was held 
 to be serious and willful misconduct. Burrell v. Avis 
 (1898), 1 W. C. C. 129. 
 
 Misrepresentation by infant as to age. An infant 
 made a false representation to the effect that he was of 
 full age in order to secure employment. It did not 
 appear that the accident in question was attributable 
 solely to such misrepresentation. Subsequently having 
 been injured in the course of his employment so ob- 
 tained, he signed a release, but later tendered repay- 
 ment of the money paid to him on signing the release, 
 and started proceedings under the Act. It was held 
 that the infant was not guilty of serious and willful 
 misconduct, and that the release was not a bar to the 
 recovery of compensation. Darnley v. Canadian Pacific 
 Ry. Co., 14 B. C. R. 15; 2 B. W. C. C. 505. 
 
 Disobedience of orders and rules. It is not every 
 breach of a rule that will constitute serious and willful 
 misconduct. The question is one purely of fact to be 
 determined by the arbitrator in each case. (House of 
 Lords) George v. Glasgow Coal Company (1908), 99 L. T. 
 782; 2 B. W. C. C. 125. 
 
 A bare breach of a regulation from which no injury 
 could reasonably be anticipated is not serious miscon- 
 duct. Johnson v. Marshall, Sons & Co. (1906), 94 L. 
 T. 828; 8 W. C. C. 10. 
 
 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 willful misconduct. Jones v. Lon- 
 don & South Western Ry. Co. (1901), 3 W. C. C. 46. 
 Deliberate and intentional disobedience on the part of
 
 TO WHOM ACT APPLIES 129 
 
 Serious and willful misconduct 
 
 a workman to an oft-repeated order whereby he and 
 his fellow workmen are placed in danger, is serious and 
 willful 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 v. 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 re- 
 fused. 
 
 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 instructed in the use of the elevator and 
 that he had not had an opportunity of becoming ac- 
 quainted 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 and willful 
 misconduct, and therefore compensation was awarded. 
 Granick v. 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. 
 
 A collier ordered to cut a road in the colliery left his 
 work and went to cut coal in a part of the mine where 
 it was forbidden by special rule to cut any, and he 
 thereby undermined some props, and caused a fall, 
 which killed him. It was held that the accident did not 
 arise out of nor in the course of the employment. The 
 court said: "If a workman is doing something outside 
 the scope of his employment, the proof of serious and 
 willful misconduct does not bring the accident within 
 9
 
 130 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Serious and willful misconduct 
 
 the scope of the employment." Weighill v. South 
 Heaton Coal Co. (1911), 4 B. W. C. C. 141. 
 
 A servant girl was forbidden to stand on the ledge of 
 a glass frame to hang out clothes in the garden. She 
 did stand on it and slipped, breaking one of her ribs. 
 It was held that the applicant was guilty of serious and 
 willful misconduct, and she was not entitled to com- 
 pensation. Beale v. Fox (1909), 2 B. W. C. C. 467. 
 
 The owners of a factory posted a notice near an 
 elevator reading as follows: "No one is allowed to use 
 this hoist except in charge of a load." A workman just 
 before mealtime got in the lift alone and a few moments 
 later was found injured so he died shortly afterwards 
 from being caught between the floor of the elevator 
 and the top of the door. It was shown that the em- 
 ploye's frequently violated the rule contained in the 
 notice, but it appeared that this was unknown to the 
 employers. The employers offered no evidence as to 
 any danger in using the lift in violation of the notice, 
 but rested merely on the disobedience to defeat the 
 dependent's claim for compensation, on the ground of 
 serious and willful misconduct. The House of Lords 
 held that the employers had not sustained the burden 
 of showing such serious and willful misconduct as 
 would defeat the right to compensation. Johnson v. 
 Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 
 10. 
 
 The special rules of a mine imposed upon the miner 
 working at the coal seam bottom of the mid-working 
 the duty of keeping the gate which fenced the working 
 from the shaft closed until the cage had been brought to 
 the level of the working and brought to a standstill, so 
 that it might be safely entered from the working. The
 
 TO WHOM ACT APPLIES 131 
 
 Serious and willful misconduct 
 
 miner opened the gate before he had ascertained that 
 the cage had been brought to the level of the working 
 and to a standstill. He then, assuming the cage was 
 there, pushed a hutch forward, which fell down the 
 shaft and the miner fell also and was injured. It was 
 found that the injury would not lead to serious and 
 permanent disablement, and that the miner was guilty 
 of serious and willful misconduct, and therefore he was 
 not entitled to compensation. George v. Glasgow Coal 
 Co. (1908), 45 Scotch L. R. 687; 1 B. W. C. C. 239. A 
 special rule applicable to a mine pit provided that "a 
 workman shall not permit a naked light to remain * * * 
 in such a position that it could ignite the explosive." 
 A miner was injured by the explosion of gunpowder. 
 The arbitrator held that the miner " having permitted 
 his naked light to remain in such a position that it 
 ignited the gunpowder, and having failed to establish 
 any circumstances justifying his doing so committed 
 a breach of said special rule, and that therefore his 
 injuries were attributable to his serious and willful mis- 
 conduct," and compensation was denied. The Court 
 of Sessions of Scotland, on appeal, held that this was 
 a finding on a question of fact and affirmed the ruling. 
 Donnachie v. United Collieries (1910), 47 Scotch L. R. 
 412. 
 
 A boy, in disobedience of orders, was cleaning a 
 machine in motion, and his right hand was drawn into 
 the machine and the top joint of the first and third 
 fingers torn off. The County Court judge held that the 
 injury was attributable to the serious and willful mis- 
 conduct of the workman, but that it resulted in serious 
 and permanent disablement, and he therefore awarded 
 compensation. It was held on appeal that the injury
 
 BRADBURYS WORKMEN'S COMPENSATION LAW 
 
 California 
 
 resulted in permanent disablement and that there was 
 evidence on which the County Court judge could find 
 that the disablement was serious. Hopwood v. Olive 
 & Partington (1910), 3 B. W. C. C. 357. 
 
 It is serious and willful misconduct for a workman to 
 deliberately meddle with new and unfamiliar machinery 
 contrary to an express order given immediately before. 
 Forster v. Pierson (1906), 8 W. C. C. 19. 
 
 Disobedience to an order of a deputy amounting to 
 a breach of a general rule of a mine is serious and willful 
 misconduct. Watson v. Butterley Co. (1902), 5 W. C. C. 
 51. 
 
 CALIFORNIA 
 (L. 1911, c. 399) 
 
 " 3. Liability for the compensation hereinafter 
 provided for, in lieu of any other liability whatsoever, 
 shall, without regard to negligence, exist against an 
 employer for any personal injury accidentally sus- 
 tained by his employes, and for his death if the injury 
 shall approximately cause death, in those cases where 
 the following conditions of compensation concur: 
 
 "(1). Where, at the time of the accident, both the 
 employer and employe" are subject to the provisions 
 of this act according to the succeeding sections hereof. 
 
 "(2). Where, at the time of the accident, the em- 
 ploye" is performing service growing out of and in- 
 cidental to his employment and is acting within the 
 line of his duty or course of his employment as such. 
 
 "(3). Where the injury is approximately caused by 
 accident, either with or without negligence, and is not 
 so caused by the willful misconduct of the employe*. 
 
 "And where such conditions of compensation exist 
 for any personal injury or death, the right to the re- 
 covery of such compensation pursuant to the provi-
 
 TO WHOM ACT APPLIES 133 
 
 California 
 
 sions of this act, and acts amendatory thereof, shall 
 be the exclusive remedy against the employer for such 
 injury or death, except that when the injury was 
 caused by the personal gross negligence or willful 
 personal misconduct of the employer, or by reason of 
 his violation of any statute designed for the protection 
 of employes from bodily injury, the employe may, at 
 his option, either claim compensation under this act, 
 or maintain an action for damages therefor; in all other 
 cases the liability of the employer shall be the same 
 as if this and the succeeding sections of this act had 
 not been passed, but shall be subject to the provisions 
 of the preceding sections of this act." 
 
 The provisions of 3 (2) above are very broad. They 
 cover every possible employment. The only exception 
 to be found in the statute is that contained in 6 (2) 1 
 which provides that the term " employe" shall not 
 include "any person whose employment is but casual 
 and not in the usual course of the trade, business, 
 profession, or occupation of his employer." 
 
 The other words of exclusion are also very broad. 
 They limit the application of the act to employe's 
 who are engaged in the "usual course of the trade, 
 business, profession, or occupation" of the employer. 
 6 (2) page 135. These words would seem to exclude 
 all domestic servants. 
 
 " 4. The following shall constitute employers sub- 
 ject to the provisions of this act within the meaning 
 of the preceding section: 
 
 " (1). The State, and each county, city and county, 
 city, town, village and school districts and all public 
 corporations, every person, firm, and private corpora- 
 1 See post, page 135.
 
 134 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 tion (including any public service corporation), who 
 has any person in service under any contract of hire, 
 express or implied, oral or written, and who, at or 
 prior to the time of the accident to the employe for 
 which compensation under this act may be claimed, 
 shall, in the manner provided in the next section, have 
 elected to become subject to the provisions of this act, 
 and who shall not, at the time of such accident, have 
 withdrawn such election, in the manner provided in the 
 next section. 
 
 " 5. Such election on the part of the employer shall 
 be made by filing with the industrial accident board, 
 hereinafter provided for, a written statement to the 
 effect that he accepts the provisions of this act, the 
 filing of which statement shall operate, within the 
 meaning of section three of this act, to subject such 
 employer to the provisions of this act and all acts 
 amendatory thereof for the term of one year from the 
 date of the filing of such statement, and thereafter, 
 without further act on his part, for successive terms of 
 one year each, unless such employer shall, at least 
 sixty days prior to the expiration of such first or any 
 succeeding year, file in the office of said board a notice 
 in writing to the effect that he withdraws his election 
 to be subject to the provisions of the act. 
 
 " 6. The term "employe"" as used in section three 
 of this act shall be construed to mean: 
 
 "(1). Every person in the service of the State, or 
 any county, city and county, city, town, village or 
 school district therein, and all public corporations, 
 under any appointment or contract of hire, express or 
 implied, oral or written, except any official of the 
 State, or of any county, city and county, city, town, 
 village or school district therein or any public corpora- 
 tion, who shall have been elected or appointed for a
 
 TO WHOM ACT APPLIES 
 
 California 
 
 regular term of one or more years, or to complete the 
 unexpired portion of any such regular term. 
 
 "(2). Every person in the service of another under 
 any contract of hire, express or implied, oral or writ- 
 ten, including aliens, and also including minors who 
 are legally permitted to work under the laws of the 
 State (who, for the purposes of the next section of 
 this act, shall be considered the same and shall have 
 the same power of contracting as adult employe's), 
 but not including any person whose employment is but 
 casual and not in the usual course of the trade, busi- 
 ness, profession or occupation of his employer. 
 
 " 7. Any employe as defined in subsection (1) of 
 the preceding section shall be subject to the provisions 
 of this act and of any act amendatory thereof. Any 
 employe 1 as defined in subsection (2) of the preceding 
 section shall be deemed to have accepted and shall, 
 within the meaning of section 3 of this act, be subject 
 to the provisions of this act and of any act amendatory 
 thereof, if, at the time of the accident upon which lia- 
 bility is claimed: 
 
 "(1). The employer charged with such liability is 
 subject to the provisions of this act, whether the em- 
 ploye has actual notice thereof or not; and 
 
 "(2). At the time of entering into his contract of 
 hire, express or implied, with such employer, such em- 
 ploye shall not have given to his employer notice in 
 writing that he elects not to be subject to the provi- 
 sions of this act, or, in the event that such contract of 
 hire was made in advance of such employer becoming 
 subject to the provisions of the act, such employe shall, 
 without giving such notice, remain in the service of 
 such employer for thirty days after the employer has 
 filed with said board an election to be subject to the 
 terms of this act."
 
 136 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 "27. The board shall cause to be printed and 
 furnished free of charge to any employer or employe 
 such blank forms as it shall deem requisite to facilitate 
 or promote the efficient administration of this act; it 
 shall provide a proper record book in which shall be 
 entered and indexed the name of every employer who 
 shall file a statement of election under this act, and the 
 date of the filing thereof, and a separate book in which 
 shall be entered and indexed the name of every em- 
 ployer who shall file his withdrawal of such election, 
 and the date of the filing thereof; and a book in which 
 shall be recorded all awards made by the board; and 
 such other books or records as it shall deem required 
 by the proper and efficient administration of this act; 
 all such records to be kept in the office of the board. 
 Upon the filing of a statement of election by an em- 
 ployer to become subject to the provisions of this act, 
 the board shall forthwith cause notice of the fact to 
 be given to his employes, by posting and keeping con- 
 tinuously posted in a public and conspicuous place 
 such notice thereof in the office, shop, or place of 
 business of the employer, or by publishing, or in such 
 other manner as the board shall deem most effective, 
 and the board shall cause notice to be given in like 
 manner of the filing of any withdrawal of such elec- 
 tion; but notwithstanding the failure to give, or the 
 insufficiency of, any such notice, knowledge of all filed 
 statements of election and withdrawals of election, 
 and of the time of the filing of the same, shall con- 
 clusively be imputed to all employe's." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 1 . Be it enacted by the people of the State of Illinois, 
 represented in the General Assembly: That any em-
 
 TO WHOM ACT APPLIES 137 
 
 Illinois 
 
 ployer covered by the provisions of this Act in this 
 State may elect to provide and pay compensation for 
 injuries sustained by any employe 1 arising out of and 
 in the course of the employment according to the 
 provisions of this Act, and thereby relieve himself 
 from liability for the recovery of damages, except as 
 herein provided. 
 
 * * * * * * * *i 
 
 "(3) a. Every such employer is presumed to have 
 elected to provide and pay the compensation accord- 
 ing to the provisions of this Act, unless and until 
 notice in writing of his election to the contrary is filed 
 with the State Bureau of Labor Statistics. 
 
 "b. Every employer within the provisions of this 
 Act failing to file such notice shall be bound hereby as 
 to all his employes who shall elect to come within the 
 provisions of this Act until January 1st of the next 
 succeeding year and for terms of each year thereafter : 
 PROVIDED, any such employer may elect to discon- 
 tinue the payments of compensation herein provided, 
 only at the expiration of any such calendar year, by 
 filing notice of his intention to discontinue such pay- 
 ments, with the State Bureau of Labor Statistics, at 
 least sixty days prior to the expiration of any such 
 calendar year, and by posting such notice in the plant, 
 shop, office or place of work, or by personal service, in 
 written or printed form, upon such employe", at least 
 sixty days prior to the expiration of any such calendar 
 year. 
 
 " c. In the event any employer elects to provide and 
 pay compensation provided in this Act, then every 
 employ^ of such employer, as a part of his contract of 
 hiring or who may be employed at the time of the 
 taking effect of this Act and the acceptance of its provi- 
 1 See Chapter I, ante, page 10.
 
 138 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 sions by the employer, shall be deemed to have ac- 
 cepted all the provisions of this Act and shall be 
 bound thereby unless within thirty days after such 
 hiring and after the taking effect of this Act, he shall 
 file a notice to the contrary with the Secretary of the 
 State Bureau of Labor Statistics, whose duty it shall 
 be to immediately notify the employer, and if so noti- 
 fied, the employer shall not be deprived of any of his 
 common-law or statutory defenses, and until such no- 
 tice to the contrary is given to the employer, the meas- 
 ure of liability of the employer for any injury shall 
 be determined according to the compensation provi- 
 sions of this Act: PROVIDED, HOWEVER, that before 
 any such employe shall be bound by the provi- 
 sions of this Act, his employer shall either furnish to 
 such employe personally at the time of his hiring, or 
 post in a conspicuous place at the plant or in the 
 room or place where such employe" is to be employed, 
 a legible statement of the compensation provisions of 
 this Act. 
 
 "2. The provisions of this Act shall apply to 
 every employer in the State engaged in the building, 
 maintaining or demolishing of any structure; in any 
 construction or electrical work; in the business of 
 carriage by land or water and loading and unloading 
 in connection therewith (except as to carriers who 
 shall be construed to be excluded herefrom by the 
 laws of the United States relating to liability to their 
 employes for personal injuries while engaged in inter- 
 state commerce where such laws are held to be exclu- 
 sive of all state regulations providing compensation 
 for accidental injuries or death suffered in the course 
 of employment); in operating general or terminal 
 storehouses; in mining, surface mining, or quarrying; 
 in any enterprise, or branch thereof, in which explosive
 
 TO WHOM ACT APPLIES 139 
 
 Illinois 
 
 materials are manufactured, handled or used in dan- 
 gerous quantities; in any enterprise wherein molten 
 metal or injurious gases or vapors or inflammable 
 fluids are manufactured, used, generated, stored or 
 conveyed in dangerous quantities; and in any enter- 
 prise in which statutory regulations are now or shall 
 hereafter be imposed for the guarding, using or the 
 placing of machinery or appliances, or for the protec- 
 tion and safeguarding of the employe's therein, each 
 of which employments is hereby determined to be 
 especially dangerous, in which from the nature, con- 
 ditions and means of prosecution of the work therein, 
 extraordinary risks to life and limb of the employe en- 
 gaged therein are inherent, necessary or substantially 
 unavoidable, and as to each of which employments it is 
 deemed necessary to establish a new system of com- 
 pensation for accidents to the employe's therein. 
 
 " 3. No common law or statutory right to recover 
 damages for injury or death sustained by any employe" 
 while engaged in the line of his duty as such employe" 
 other than the compensation herein provided shall be 
 available to any employe" who has accepted the pro- 
 visions of this Act or to any one wholly or partially 
 dependent upon him or legally responsible for his 
 estate: PROVIDED, that when the injury to the em- 
 ploye" was caused by the intentional omission of the 
 employer, to comply with statutory safety regulations, 
 nothing in this Act shall affect the civil liability of the 
 employer. If the employer is a partnership, such 
 omission must be that of one of the partners thereof, 
 and if a corporation, that of any elective officer thereof. 
 
 "7. The compensation herein provided shall be 
 the measure of the responsibility which the employer 
 has assumed for injuries or death that may occur to 
 employes in his employment subject to the provisions
 
 140 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 of this Act, and it shall not be in any way reduced by 
 contributions from employe's. 
 
 " 8. If it is proved that the injury to the employe" 
 resulted from his deliberate intention to cause such 
 injury, no compensation with respect to that injury 
 shall be allowed. 
 
 Employers are not permitted to collect from employe's 
 any portion of the premium paid for insurance against 
 liability under this Act. 15. See Chapter XXXIV, 
 post. 
 
 "21. The term "employe"" as used in this Act 
 shall be held to include only such persons as may be 
 exposed to the necessary hazards of carrying on any 
 employment or enterprise referred to in Section 2 
 of this Act. Persons whose employment is of a casual 
 nature and who are employed otherwise than for the 
 purpose of the employer's trade or business, are not 
 included in the foregoing definition. 
 
 " 22. Section 21 shall not be construed to in- 
 clude any employe engaged in any work of an in- 
 cidental character unconnected with the dangers 
 necessarily involved in carrying on any employment 
 or enterprise referred to in Section 2, or in any work 
 of a clerical or administrative nature which does not 
 expose the employe" to the inherent hazards of any 
 such employment or enterprise." 
 
 The provisions of 21 and 22 show the effort which 
 has been made to exclude domestic servants and to in- 
 clude only the persons who are engaged in the em- 
 ployer's business. The meaning of the terms "casual" 
 employe's, and " employe's engaged in any work of an in- 
 cidental character unconnected with the dangers neces-
 
 TO WHOM ACT APPLIES 141 
 
 Kansas 
 
 sarily involved in carrying on any employment or 
 enterprise" will undoubtedly be the subject of much 
 discussion. For definitions and court decisions as to 
 the term " casual" employe's see pages 121 et seq. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 1. The obligation. If in any employment to 
 which this act applies, personal injury by accident 
 arising out of and in the course of employment is 
 caused to a workman, his employer shall, subject as 
 hereinafter mentioned, be liable to pay compensation 
 to the workman in accordance with this act. Save as 
 herein provided, 1 no such employer shall be liable for 
 any injury for which compensation is recoverable 
 under this act; provided, that (a) the employer shall 
 not be liable under this act in respect of any injury 
 which does not disable the workman for a period of 
 at least two weeks from earning full wages at the work 
 at which he is employed; (6) if it is proved that the 
 injury to the workman results from his deliberate 
 intention to cause such injury, or from his willful 
 failure to use a guard or protection against accident 
 required pursuant to any statute and provided for 
 him, or a reasonable and proper guard and protection 
 voluntarily furnished him by said employer, or solely 
 from his deliberate breach of statutory regulations 
 affecting safety of life or limb, or from his intoxica- 
 tion, any compensation in respect to that injury shall 
 be disallowed. 
 
 " 2. Reservation of liability for wrong or negligence 
 
 1 See 2, post, wherein it is provided that an injured workman or 
 his dependents may elect whether to demand "compensation" or 
 "damages" in certain cases.
 
 142 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 in certain cases. Where the injury was proximately 
 caused by the individual negligence, either of com- 
 mission or omission, of the employer, including such 
 negligence of the directors or of any managing officer or 
 managing agent of such employer if a corporation, or 
 of any of the partners if such employer is a partnership, 
 or of any member if such employer is an association, 
 but excluding the negligence of competent employe's 
 in the performance of their duties or of the employer's 
 duty delegated to them, the existing liability of the 
 employer shall not be affected by this act, but in such 
 case the injured workman, or if death results from 
 such injury, his dependents as herein defined, if they 
 unanimously agree, otherwise his legal representative, 
 may elect between any right of action against the 
 employer upon such liability and the right to compen- 
 sation under this act." 
 
 " 6. Application of the act. This act shall apply 
 only to employment in the course of the employer's 
 trade or business on, in, or about a railway, factory, 
 mine or quarry, electric, building or engineering work, 
 laundry, natural gas plant and all employments 
 wherein a process requiring the use of any dangerous 
 explosive or inflammable materials is carried on, which 
 is conducted for the purpose of business, trade or 
 gain; each of which employments is hereby deter- 
 mined to be especially dangerous, in which from the 
 nature, conditions or means of prosecution of the work 
 therein, extraordinary risk to the life and limb of the 
 workman engaged therein are inherent, necessary, or 
 substantially unavoidable, and as to each of which 
 employments it is deemed necessary to establish a 
 new system of compensation for injuries to workmen. 
 This act shall not apply in any case where the accident 
 occurred before this act takes effect, and all rights
 
 TO WHOM ACT APPLIES 143 
 
 Kansas 
 
 which have accrued, by reason of any such accident, 
 at the time of the publication of this act, shall be 
 saved the remedies now existing therefor, and the 
 court shall have the same power as to them as if this 
 act had not been enacted. 
 
 " 7. This act shall not be construed to apply to 
 business or employments which, according to law, are 
 so engaged in interstate commerce as to be not sub- 
 ject to the legislative power of the State, nor to per- 
 sons injured while they are so engaged. 
 
 " 8. It is hereby determined that the necessity 
 for this law and the reason for its enactment, exist 
 only with regard to employers who employ a consider- 
 able number of persons. This act, therefore, shall only 
 apply to employers by whom fifteen or more workmen 
 have been [employed] continuously for more than one 
 month at the time of the accident and who have elected 
 or shall elect before the accident to come within the 
 provision hereof; provided, however, that employers 
 having less than fifteen workmen may elect to come 
 within the provisions of this act in which case his 
 employes shall be included herein, as hereinafter pro- 
 vided." 
 
 " 10. Incompetency of workman. In case an in- 
 jured workman is mentally incompetent or a minor, or 
 where death results from the injury, in case any of his 
 dependents as herein denned is mentally incompetent 
 or a minor, at the time when any right, privilege or 
 election accrues to him under this act, his guardian 
 may, in his behalf, claim and exercise such right, 
 privilege, or election, and no limitation of time, in this 
 act provided for, shall run, so long as such incompetent 
 or minor has no guardian." 
 
 "44. All employers as denned by this act who 
 shall elect to come within the provisions of this act
 
 Kansas 
 
 and of all acts amendatory hereof shall do so by filing 
 a statement to such effect with the Secretary of State 
 of this State at any time after taking effect of this act, 
 which election shall be binding upon such employer 
 for the term of one year from the date of the filing of 
 such statement, and thereafter, without further act on 
 his part, for successive terms of one year each, unless 
 such employer shall, at least sixty days prior to the 
 expiration of such first or of any succeeding year, file 
 in the office of the Secretary of State a notice in writing 
 to the effect that he withdraws his election to be sub- 
 ject to the provisions of this act. Notice of such elec- 
 tion or withdrawal shall be forthwith posted by such 
 employer in conspicuous places in and about his place 
 of business. 
 
 "45. Every employe entitled to come within the 
 provisions of this act, shall be presumed to have done 
 so unless he serve written notice, before injury, upon 
 his employer that he elects not to accept thereunder 
 and thereafter any such employe 1 desiring to change 
 his election shall only do so by serving written notice 
 thereof upon his employer. Any contract wherein an 
 employer requires of an employ^ as a condition of em- 
 ployment that he shall elect not to come within the 
 provisions of this act shall be void." 
 
 " 47. In an action to recover damages for a per- 
 sonal injury sustained within this State by an em- 
 ploye" (entitled to come within the provisions of this 
 act) while engaged in the line of his duty as such or 
 for death resulting from personal injury so sustained 
 in which recovery is sought upon the ground of want of 
 due care of the employer or of any officer, agent or 
 servant of the employer, and where such employer has 
 elected to come and is within the provisions of this act 
 as hereinbefore provided, it shall be a defense for such
 
 TO WHOM ACT APPLIES 145 
 
 Massachusetts 
 
 employer in all cases where said employe has elected 
 not to come within the provisions of this act; (a) That 
 the employe either expressly or impliedly assumed the 
 risk of the hazard complained of; (6) that the injury 
 or death was caused in whole or in part by the want of 
 due care of a fellow servant; (c) that said employe was 
 guilty of contributory negligence; provided, however, 
 that none of these defenses shall be available where 
 the injury was caused by the willful or gross negli- 
 gence of such employer, or of any managing officer, or 
 managing agent of said employer, or where under the 
 law existing at the time of the death or injury such 
 defenses are not available." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part I, 4. The provisions of sections one hundred 
 and twenty-seven, to one hundred and thirty-five, 
 inclusive, and of one hundred and forty-one to one 
 hundred and forty-three, inclusive, of chapter five 
 hundred and fourteen of the acts of the year nineteen 
 hundred and nine, and of any acts in amendment 
 thereof, shall not apply to employe's of a subscriber 
 while this act is in effect. 
 
 " 5. An employe of a subscriber shall be held to 
 have waived his right of action at common law to 
 recover damages for personal injuries if he shall not 
 have given his employer at the time of his contract of 
 hire, notice in writing that he claimed such right, or if 
 the contract of hire was made before the employer 
 became a subscriber, if the employe shall not have 
 given the said notice within thirty days of notice of 
 such subscription. An employe who has given notice 
 to his employer that he claimed his right of action at 
 common law may waive such claim by a notice in 
 10
 
 146 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 writing which shall take effect five days after it is 
 delivered to the employer or his agent." 
 
 "Part II, 1. If an employe, who has not given 
 notice of his claim of common-law rights of action, as 
 provided in Part I, section five, or who has given such 
 notice and has waived the same, receives a personal 
 injury arising out of and in the course of his employ- 
 ment, he shall be paid compensation by the association, 
 as hereinafter provided, if his employer is a subscriber 
 at the time of the injury." 
 
 "2. If the employe" is injured by reason of his 
 serious and willful misconduct, he shall not receive 
 compensation. 
 
 "3. If the employe is injured by reason of the 
 serious and willful misconduct of a subscriber or of any 
 person regularly entrusted with and exercising the 
 powers of superintendence, the amounts of compensa- 
 tion hereinafter provided shall be doubled. In such 
 case the subscriber shall repay to the association the 
 extra compensation paid to the employe. If a claim 
 is made under this section the subscriber shall be al- 
 lowed to appear and defend against such claim only." 
 (As amended by L. 1912, c. 571.) 
 
 Casual employes are not included within the oper- 
 ation of the act. Part V, 2. See Chapter XVII, 
 post, page 338. 
 
 " Part V, 5. The provisions of this act shall not 
 apply to injuries sustained prior to the taking effect 
 thereof." 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Parti, 5. The following shall constitute em- 
 ployers subject to the provisions of this act:
 
 TO WHOM ACT APPLIES 147 
 
 Michigan 
 
 "1. The State and each county, city, township, in- 
 corporated village and school district therein; 
 
 "2. Every person, firm and private corporation, in- 
 cluding any public service corporation, who has any 
 person in service under any contract of hire, express or 
 implied, oral or written, and who, at or prior to the 
 time of the accident to the employe for which com- 
 pensation under this act may be claimed, shall in the 
 manner provided in the next section, have elected to 
 become subject to the provisions of this act, and who 
 shall not, prior to such accident, have effected a 
 withdrawal of such election, in the manner provided 
 in the next section." 
 
 "Part I, 6. Such election on the part of the em- 
 ployers mentioned in subdivision two of the preceding 
 section, shall be made by filing with the industrial 
 accident board hereinafter provided for, a written 
 statement to the effect that such employer accepts the 
 provisions of this act, and that he adopts, subject to 
 the approval of said board, one of the four methods 
 provided for the payment of the compensation here- 
 inafter specified. The filing of such statement and the 
 approval of said board shall operate, within the mean- 
 ing of the preceding section, to subject such employer 
 to the provisions of this act and all acts amendatory 
 thereof for the term of one year from the date of 
 the filing of such statement, and thereafter, without 
 further act on his part, for successive terms of one 
 year each, unless such employer shall, at least thirty 
 days prior to the expiration of such first or any suc- 
 ceeding year, file in the office of said board a notice in 
 writing to the effect that he desires to withdraw his 
 election to be subject to the provisions of this act: 
 Provided, however, That such employer so electing
 
 148 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 to become subject to the provisions of this act shall, 
 within ten days after the approval by said board of 
 his election filed as aforesaid, post in a conspicuous 
 place in his plant, shop, minor place of work, or if 
 such employer be a transportation company, at its 
 several stations and docks, notice in the form as pre- 
 scribed and furnished by the industrial accident 
 board to the effect that he accepts and will be bound 
 by the provisions of this act." 
 
 " 7. The term 'employe' as used in this act shall 
 be construed to mean: 
 
 "1. Every person in the service of the State, or of 
 any county, city, township, incorporated village or 
 school district therein, under any appointment, or 
 contract of hire, express or implied, oral or written, 
 except any official of the State, or of any county, city, 
 township, incorporated village or school district 
 therein: Provided, That one employed by a con- 
 tractor who has contracted with a county, city, town- 
 ship, incorporated village, school district or the State, 
 through its representatives, shall not be considered 
 an employe of the State, county, city, township, in- 
 corporated village or school district which made the 
 contract; 
 
 "2. Every person in the service of another under 
 any contract of hire, express or implied, oral or 
 written, including aliens, and also including minors 
 who are legally permitted to work under the laws of 
 the State who, for the purposes of this act, shall be 
 considered the same and have the same power to con- 
 tract as adult employes, but not including any person 
 whose employment is but casual or is not in the usual 
 course of the trade, business, profession or occupation 
 of his employer. 
 
 " 8. Any employe as -defined in subdivision one of
 
 TO WHOM ACT APPLIES 140 
 
 Michigan 
 
 the preceding section shall be subject to the provisions 
 of this act and of any act amendatory thereof. Any 
 employe as defined in subdivision two of the preceding 
 section shall be deemed to have accepted and shall be 
 subject to the provisions of this act and of any act 
 amendatory thereof if, at the time of the accident 
 upon which liability is claimed: 
 
 "1. The employer charged with such liability is 
 subject to the provisions of this act, whether the em- 
 ploye has actual notice thereof or not; and 
 
 "2. Such employe" shall not, at the time of entering 
 into his contract of hire, express or implied, with such 
 employer, have given to his employer notice in writing 
 that he elects not to be subject to the provisions of 
 this act; or, in the event that such contract of hire was 
 made before such employer became subject to the 
 provisions of this act, such employe shall have given 
 to his employer notice in writing that he elects not to 
 be subject to such provisions, or without giving either 
 of such notices shall have remained in the service of 
 such employer for thirty days after the employer has 
 filed with said board an election to be subject to the 
 terms of this act. An employe who has given notice 
 to his employer in writing as aforesaid that he elects 
 not to be subject to the provisions of this act, may 
 waive such claim by a notice in writing, which shall 
 take effect five days after it is delivered to the em- 
 ployer or his agent." 
 
 "Part II, 2. If the employe is injured by reason 
 of his intentional and willful misconduct, he shall not 
 receive compensation under the provisions of this 
 Act." 
 
 "Part II, 14. If an injured employe is mentally 
 incompetent or is a minor at the time when any right 
 or privilege accrues to him under this act, his guardian
 
 150 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 or next friend may in his behalf claim and exercise 
 such right or privilege." 
 
 As to the method of payment, which an employer 
 must specify in his notice accepting the compensation 
 principle see Part IV, 1-4, Chapter XXVII, post, 
 page 505. 
 
 "Part VI, 4. The provisions of this act shall 
 apply to employers and workmen engaged in in- 
 trastate commerce, and also to those engaged in 
 interstate or foreign commerce, for whom a rule of 
 liability or method of compensation has been or may 
 be established by the congress of the United States, 
 only to the extent that their mutual connection with 
 intrastate work may and shall be clearly separable 
 and distinguishable from interstate or foreign com- 
 merce, except that any such employer and any of his 
 workmen working only in this State, may, subject to 
 the approval of the industrial accident board, and so 
 far as not forbidden by any act of congress, volun- 
 tarily accept and become bound by the provisions of 
 this act in like manner and with the same force and 
 effect in all respects as is hereinbefore provided for 
 other employers and their workmen." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 " 1. If in any employment to which this act applies 
 personal injury disabling a workman from his regular 
 service for more than ten days, or death by accident, 
 arising out of and in the course of employment is 
 caused to a workman, the workman so injured, or in 
 case of death, the member of his family, as hereinafter
 
 TO WHOM ACT APPLIES 151 
 
 Nevada 
 
 defined, shall be entitled to receive from his employer, 
 and the said employer shall be liable to pay, the com- 
 pensatio'n provided for in this act; provided, that re- 
 covery hereunder shall not be barred where such em- 
 ploye* may have been guilty of contributory negligence 
 where such contributory negligence is slight and that 
 of the employer is gross in comparison, but in which 
 event the compensation may be diminished in propor- 
 tion to the amount of negligence attributable to such 
 employe*, and it shall be conclusively presumed that 
 such employe" was not guilty of contributory negli- 
 gence in any case where the violation of any statute 
 enacted for the safety of employe's contributed to such 
 employees injury; and it shall not be adefense: (1) That 
 the employe" either expressly or impliedly assumed the 
 risk of the hazard complained of; (2) That the injury 
 or death was caused in whole or in part by the want of 
 ordinary or reasonable care of a fellow servant. No 
 contract, rule or regulation shall exempt the employer 
 from any of the provisions of the preceding section of 
 this act. 
 
 "2. 'Employer' includes any body of persons 
 corporate or incorporate and the legal personal rep- 
 resentative of a deceased employer. 'Workman' in- 
 cludes every person who is engaged in an employment 
 to which this act applies, whether by way of manual 
 labor or otherwise, and where his agreement is one of 
 service or apprenticeship or otherwise, and is ex- 
 pressed or implied, is oral or in writing. Any reference 
 to a workman who has been injured shall, where the 
 workman is dead, include a reference to his legal per- 
 sonal representative or to his dependents or other 
 person to whom compensation is payable. 'Depend- 
 ents' means wife, father, mother, husband, sister, 
 brother, child or grandchild; provided, that they were
 
 152 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 wholly or partly dependent upon the earnings of the 
 workman at the time of his death. 
 
 " 3. This act shall apply to workmen engaged in 
 manual or mechanical labor in the following employ- 
 ments within this State, each of which is hereby de- 
 termined to be especially dangerous, in which from the 
 nature, condition or means of prosecution of the work 
 therein, extraordinary risks to the life and limb of 
 workmen engaged therein are inherent, necessarily or 
 substantially unavoidable, and to each of which em- 
 ployments it is deemed necessary to establish a new 
 system of compensation for accidents to workmen. 
 
 "(a) The erection or demolition of any bridge or 
 building in which there is, or in which the plans or 
 specifications require iron or steel framework; 
 
 " (6) The operation of elevators, elevating machines 
 or derricks or hoisting apparatus used within or on the 
 outside of any bridge or building for the conveying of 
 material in connection with the erection or demolition 
 of such bridge or building; 
 
 " (c) Works on scaffolds of any kind elevated twenty 
 feet or more above the ground, water or floor beneath, 
 in the erection, construction, painting, alteration or 
 repair of buildings, bridges or structures; 
 
 "(d) Construction, operation, alteration, or repair 
 of wires, cables, switchboards or apparatus charged 
 with electric current; 
 
 "(e) The operation on railroads of locomotives, 
 engines, trains, motors or cars propelled by gravity, 
 steam, electricity or other mechanical power, or the 
 construction or repairs of railroad tracks and roadbeds 
 over which such locomotives, engines, trains, motors, 
 or cars are operated; 
 
 "(/) Construction, operation, alteration, or repairs 
 of locomotives, engines, trains, motors or cars in or
 
 TO WHOM ACT APPLIES 153 
 
 New Hampshire 
 
 about the shops, round-houses, or other places, where 
 the same is done; 
 
 "(g) Construction, operation, alteration or repairs 
 to mills, smelters or mines, including every shaft or 
 pit in the course of being sunk, and every crosscut, 
 drift, station, winze, level or inclined planes through 
 which workmen pass to and from work, and all works, 
 machinery, tramways, ladders or passages, both below 
 ground and above ground, in and adjacent to any 
 mine; 
 
 "(h) All work necessitating dangerous proximity 
 to gunpowder, blasting powder, dynamite or any 
 other explosives, where the same are used as instru- 
 mentalities of the industry; 
 
 "(*') The construction of tunnels. The employers 
 to whom this act shall apply shall be any person or 
 persons, association, such industry as aforesaid." 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 " 1. This act shall apply only to workmen engaged 
 in manual or mechanical labor in the employments 
 described in this section, which, from the nature, con- 
 ditions or means of prosecution of such work, are 
 dangerous to the life and limb of workmen engaged 
 therein, because in them the risks of employment and 
 the danger of injury caused by fellow servants are 
 great and difficult to avoid. 
 
 " (a) The operation on steam or electric railroads 
 of locomotives, engines, trains or cars, or the construc- 
 tion, alteration, maintenance or repair of steam rail- 
 road tracks or roadbeds over which such locomotives, 
 engines, trains or cars are or are to be operated. 
 
 " (6) Work in any shop, mill, factory or other place
 
 154 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 on, in connection with or in proximity to any hoisting 
 apparatus, or any machinery propelled or operated by 
 steam or other mechanical power in which shop, mill, 
 factory or other place five or more persons are en- 
 gaged in manual or mechanical labor. 
 
 " (c) The construction, operation, alteration or re- 
 pair of wires or lines of wires, cables, switch boards or 
 apparatus, charged with electric currents. 
 
 "(d) All work necessitating dangerous proximity 
 to gunpowder, blasting powder, dynamite or any other 
 explosives, where the same are used as instrumental- 
 ities of the industry, or to any steam boiler owned or 
 operated by the employer, provided injury is occa- 
 sioned by the explosion of any such boiler or explosive. 
 
 " (e) Work in or about any quarry, mine or foundry. 
 
 " As to each of said employments it is deemed nec- 
 essary to establish a new system of compensation for 
 accidents to workmen. 
 
 " 2. If, in the course of any of the employments 
 above described, personal injury by accident arising 
 out of and in the course of the employment is caused 
 to any workman employed therein, in whole or in part, 
 by failure of the employer to comply with any statute, 
 or with any order made under authority of law, or 
 by the negligence of the employer or any of his or its 
 officers, agents or employe's, or by reason of any de- 
 fect or insufficiency due to his, its or their negligence in 
 the condition of his or its plant, ways, works, machin- 
 ery, cars, engines, equipment, or appliances, then such 
 employer shall be liable to such workman for all dam- 
 ages occasioned to him, or, in case of his death, to his 
 personal representatives for all damages now recover- 
 able under the provisions of Chap. 191 of the Public 
 Statutes. 1 The workman shall not be held to have 
 
 1 See provisions, c. 191, Pub. Stat.
 
 TO WHOM ACT APPLIES 155 
 
 New Hampshire 
 
 assumed the risk of any injury due to any cause speci- 
 fied in this section; but there shall be no liability under 
 this section for any injury to which it shall be made 
 to appear by a preponderance of evidence that the 
 negligence of the plaintiff contributed. 1 The damages 
 provided for by this section shall be recovered in an 
 action on the case for negligence." 
 
 " 3. The provisions of section 2 of this act shall 
 not apply to any employer who shall have filed with 
 the Commissioner of Labor his declaration in writing 
 that he accepts the provisions of this act as contained 
 in the succeeding sections, and shall have satisfied 
 the Commissioner of Labor of his financial ability to 
 comply with its provision, or shall have filed with the 
 Commissioner of Labor a bond, in such form and 
 amount as the Commissioner may prescribe, condi- 
 tioned on the discharge by such employer of all lia- 
 bility incurred under this act. Such bond shall be 
 enforced by the Commissioner of Labor for the benefit 
 of all persons to whom such employer may become 
 liable under this act in the same manner as probate 
 bonds are enforced. The Commissioner may, from 
 time to time, order the filing of new bonds, when in 
 his judgment such bonds are necessary; and after 
 thirty days from the communication of such order 
 to any employer, such employer shall be subject to 
 the provisions of section 2 of this act, until such order 
 has been complied with. The employer may at any 
 time revoke his acceptance of the provisions of the 
 succeeding sections of this act, by filing with the 
 Commissioner of Labor a declaration to that effect, 
 
 1 The New Hampshire statute specifically preserves the defense 
 of contributory negligence. But such negligence must be proved 
 by a preponderance of the evidence. This is to all intents and pur- 
 poses making contributory negligence an affirmative defense.
 
 156 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 and by posting copies of such declaration in conspicu- 
 ous places about the place where his workmen are 
 employed. Any person aggrieved by any decision of 
 the Commissioner under this section may apply by 
 petition to any Justice of the Superior Court for a 
 review of such decision and said Justice on notice and 
 hearing shall make such order affirming, reversing or 
 modifying such decision as justice may require; and 
 such order shall be final. 
 
 "Such employer shall be liable to all workmen en- 
 gaged in any of the employments specified in section I, 1 
 for any injury arising out of and in the course of their 
 employment, in the manner provided in the following 
 sections of this act. 
 
 "Provided, That the employer shall not be liable 
 in respect of any injury which does not disable the 
 workman for a period of at least two weeks from earn- 
 ing full wages at the work at which he was employed, 
 and, 
 
 "Provided, That the employer shall not be liable in 
 respect to any injury to the workman which is caused 
 in whole or in part by the intoxication, violation of 
 law or serious or willful misconduct of the workman. 
 
 " Provided, further, That the employer shall at the 
 election of the workman, or his personal representa- 
 tive, be liable under the provisions of section 2 of this 
 act for all injury caused in whole or in part by willful 
 failure of the employer to comply with any statute, or 
 with any order made under authority of law." 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 To avoid the constitutional question which is feared 
 in these acts and which is discussed in the case of 
 1 See ante, page 153.
 
 TO WHOM ACT APPLIES 157 
 
 New Jersey 
 
 Ives v. South Buffalo Ry. Co., 201 N. Y. 271, the 
 New Jersey legislature adopted an elective principle 
 which has been followed largely in other States. That 
 is, both employer and employe are presumed to have 
 elected to have waived their common-law rights of 
 actions and defenses, unless they have entered into a 
 contract to the contrary or unless either has given a 
 notice in writing that he will not be bound by the 
 provisions of the Compensation Act. New Jersey 
 seems to have been the first State to have grasped and 
 utilized this principle as a possible escape from the con- 
 stitutional question raised in the Ives case. 
 
 "SECTION II 
 "ELECTIVE COMPENSATION 
 
 "7. Compensation under agreement. Exceptions. 
 When employer and employ^ shall by agreement, 
 either express or implied, as hereinafter provided, ac- 
 cept the provisions of section II of this act, compensa- 
 tion for personal injuries to or for the death of such 
 employe" by accident arising out of and in the course 
 of his employment shall be made by the employer 
 without regard to the negligence of the employer, 
 according to the schedule contained in paragraph 
 eleven, in all cases except when the injury or death is 
 intentionally self-inflicted, or when intoxication is the 
 natural and proximate cause of injury, and the burden 
 of proof of such fact shall be upon the employer. 
 
 "II, 8. Agreement deemed surrender of rights to 
 other method. Such agreement shall be a surrender 
 by the parties thereto of their rights to any other 
 method, form or amount of compensation or deter- 
 mination thereof than as provided in section II of this 
 act, and an acceptance of all the provisions of sec-
 
 158 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 tion II of this act, and shall bind the employe himself 
 and for compensation for his death shall bind his per- 
 sonal representatives, his widow and next of kin, as 
 well as the employer, and those conducting his busi- 
 ness during bankruptcy or insolvency. 1 
 
 "9. Employment subject to this act. Every con- 
 tract of hiring made subsequent to the time provided 
 for this act to take effect shall be presumed to have 
 been made with reference to the provisions of sec- 
 tion II of this act, and unless there be as a part of such 
 contract an express statement in writing, prior to any 
 accident, either in the contract itself or by written 
 notice from either party to the other, that the pro- 
 visions of section II of this act are not intended to 
 apply, then it shall be presumed that the parties have 
 accepted the provisions of section II of this act and 
 have agreed to be bound thereby. In the employment 
 of minors, section II shall be presumed to apply unless 
 the notice be given by or to the parent or guardian of 
 the minor. 
 
 " 10. Termination of contract. The contract for 
 the operation of the provisions of section II of this 
 act may be terminated by either party upon sixty 
 days' notice in writing prior to any accident." 2 
 
 "Chapter 868 Laws of 1911 
 
 "A supplement to an act entitled 'An act prescrib- 
 ing the liability of an employer to make compensation 
 for injuries received by an employ in the course of 
 employment, establishing an elective schedule of com- 
 pensation, and regulating procedure for the determi- 
 
 1 See III, paragraph 25, which is discussed in Chapter XXXVII, 
 post, page 587, and Chapter I, ante, page 29, as to whether or not 
 the common-law right of action is eliminated by this section. 
 
 2 See following supplemental act, L. 1911, c. 368.
 
 TO WHOM ACT APPLIES 159 
 
 Ohio 
 
 nation of liability and compensation thereunder,' 
 approved April 4 one thousand nine hundred and 
 eleven. 
 
 "Be it enacted by the Senate and General Assembly 
 of the State of New Jersey: 
 
 "1. Every contract of hiring, verbal, written or 
 implied from circumstances, now in operation or made 
 or implied prior to the time limited for the act to which 
 this act is a supplement to take effect, shall, after this 
 act takes effect, be presumed to continue subject to 
 the provisions of section two of the act to which this 
 act is a supplement, unless either party shall, prior to 
 accident, in writing, notify the other party to such 
 contract that the provisions of section two of the act 
 to which this act is a supplement are not intended to 
 apply. 
 
 "2. This act shall take effect on the fourth day of 
 July next succeeding its passage and approval. 
 
 "May 2, 1911. Approved by Governor." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 "20-1. Duties of employers who pay fund. Any 
 employer who employs five or more workmen or oper- 
 atives regularly in the same business, or in or about the 
 same establishment who shall pay into the state insur- 
 ance fund the premiums provided by this act, shall not 
 be liable to respond in damages at common law or by 
 statute, save as hereinafter provided, 1 for injuries or 
 death of any such employe", wherever occurring, dur- 
 ing the period covered by such premiums, provided 
 
 1 This means as provided in 21-2. See Chapter I, ante, page 31. 
 The employ 6 may elect to sue for "damages" when the injury 
 occurs by reason of a willful act on the part of the employer, or the 
 violation of any law or ordinance respecting safety devices.
 
 160 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 the injured employe" has remained in his service with 
 notice that his employer has paid into the state in- 
 surance fund the premiums provided by this act; the 
 continuation in the service of such employer with such 
 notice, shall be deemed a waiver by the employe of 
 his right of action as aforesaid. 
 
 "Each employer paying the premiums provided by 
 this act into the state insurance fund shall post in 
 conspicuous places about his place or places of busi- 
 ness typewritten or printed notices stating the fact 
 that he has made such payment; and the same, when 
 so posted, shall constitute sufficient notice to his em- 
 ployes of the fact that he has made such payment; 
 and of any subsequent payments he may make after 
 such notices have been posted. 
 
 " 20-2. Premiums to be paid. For the purpose of 
 creating such state insurance fund, each employer 
 who employs five or more workmen or operatives 
 regularly in the same business, or in or about the same 
 establishment, and his employe's in this State, having 
 elected to accept the provisions of this act, shall pay, 
 on or before January 1, 1912, and semi-annually there- 
 after, the premiums of liability risk in the classes of 
 employment as may be determined and published by 
 the State Liability Board of Awards. The said em- 
 ployers for themselves and their employes shall make 
 such payments to the state treasurer of Ohio, who shall 
 receive and place the same to the credit of such state 
 insurance fund. The premiums provided for in this 
 act shall be paid by the employer and employe's in the 
 following proportions, to wit: Ninety per cent of the 
 premium shall be paid by the employer and ten per 
 cent by the employes. Each employer is authorized 
 to deduct from the pay roll of his employes ten per 
 cent of the said premiums for any premium period in
 
 TO WHOM ACT APPLIES 161 
 
 Rhode Island 
 
 proportion to the pay roll of such employes; no deduc- 
 tion shall be made except for that portion of the 
 premium period antedating such pay roll. Each em- 
 ployer shall give a receipt to each employe" showing 
 the amount which has been deducted and paid into 
 the state insurance fund." 
 
 See also 21-2, reprinted in Chapter I, ante, page 31, 
 for the effect on the liability of the employer of will- 
 fully inflicting an injury on an employe" or of an in- 
 jury resulting from failure to comply with statutes 
 or ordinance relating to safety devices. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. I, 2. Exceptions. The provisions of this 
 act shall not apply to actions to recover damages for 
 personal injuries, or for death resulting from personal 
 injuries, sustained by employes engaged in domestic 
 service or agriculture. 
 
 " 3. Exceptions. The provisions of this act shall 
 not apply to employers who employ five or less work- 
 men or operatives regularly in the same business, but 
 such employers may, by complying with the pro- 
 visions of section 5 of this Article become subject to 
 the provisions of this Act." 
 
 (Section 4 provides that as to the employers who 
 elect to pay compensation his employes shall have no 
 right of action against him for personal injuries at 
 common law or otherwise. See Chapter I.) 
 
 " 5. Election, how made. Such election on the 
 part of the employer shall be made by filing with the 
 commissioner of industrial statistics a written state- 
 ment to the effect that he accepts the provisions of 
 11
 
 162 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 this act, and by giving reasonable notice of such 
 election to his workmen by posting and keeping con- 
 tinuously posted copies of such statement in con- 
 spicuous places about the place where his workmen 
 are employed, the filing of which statement and the 
 giving of which notice shall operate to subject such 
 employer to the provisions of this act and all acts 
 amendatory thereof for the term of one year from the 
 date of the filing of such statement, and thereafter, 
 without further act on his part, for successive terms 
 of one year, each, unless such employer shall, at least 
 sixty days prior to the expiration of such first or any 
 succeeding year, file with said commissioner a notice 
 in writing to the effect that he desires to withdraw his 
 election to be subject to the provisions of this act and 
 shall give reasonable notice to his workmen as above 
 provided. Blank forms of election and withdrawal as 
 herein provided, shall be furnished by said commis- 
 sioner. 
 
 " 6. Election by employe. An employe" of an em- 
 ployer who shall have elected to become subject to 
 the provisions of this act as provided in section 5 of 
 this Article shall be held to have waived his right of 
 action at common law to recover damages for personal 
 injuries, if he shall not have given his employer at the 
 time of his contract of hire notice in writing that he 
 claimed such right, and within ten days thereafter 
 have filed a copy thereof with the commissioner of 
 industrial statistics, or, if the contract of hire was 
 made before the employer so elected, if the employe 
 shall not have given the said notice and filed the same 
 with said commissioner within ten days after notice by 
 the employer, as above provided, of such election; and 
 such waiver shall continue in force for the term of one 
 year, and thereafter without further act on his part,
 
 TO WHOM ACT APPLIES 163 
 
 Rhode Island 
 
 for successive terms of one year, each, unless such 
 employe shall at least sixty days prior to the expira- 
 tion of such first or any succeeding year, file with the 
 said commissioner a notice in writing to the effect that 
 he desires to claim his said right of action at common 
 law and within ten days thereafter shall give notice 
 thereof to his employer. A minor working at an age 
 legally permitted under the laws of this State shall be 
 deemed sui juris for the purpose of this act and no 
 other person shall have any cause of action or right to 
 compensation for an injury to such minor employe 
 except as expressly provided in this act; but if said 
 minor shall have a parent living or a guardian, such 
 parent or guardian, as the case may be, may give the 
 notice and file a copy of the same as herein provided 
 by this section, and such notice shall bind the minor 
 in the same manner that adult employes are bound 
 under the provisions of this act. In case no such 
 notice is given, such minor shall be held to have 
 waived his right of action at common law to recover 
 damages for personal injuries. Any employe, or the 
 parent or guardian of any minor employe", who has 
 given notice to the employer that he claimed his right 
 of action at common law may waive such claim by a 
 notice in writing which shall take effect five days after 
 the delivery to the employer or his agent. 
 
 "Art. II, 1. To whom made. If an employe who 
 has not given notice of his claim of common-law rights 
 of action or who has given such notice and has waived 
 the same, as provided in section 6 of Article I, receives 
 a personal injury by accident arising out of and in the 
 course of his employment, he shall be paid compensa- 
 tion, as hereinafter provided, by the employer who 
 shall have elected to become subject to the provisions 
 of this act.
 
 164 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 " 2. Willful injury. No compensation shall be 
 allowed for the injury or death of an employe where it 
 is proved that his injury or death was occasioned by 
 his willful intention to bring about the injury or death 
 of himself or of another, or that the same resulted 
 from his intoxication while on duty." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 2. Enumeration of extra hazardous works. There 
 is a hazard in all employment, but certain employ- 
 ments have come to be, and to be recognized as 
 being inherently constantly dangerous. This act is 
 intended to apply to all such inherently hazardous 
 works and occupations, and it is the purpose to em- 
 brace all of them, which are within the legislative 
 jurisdiction of the State, in the following enumeration, 
 and they are intended to be embraced within the term 
 'extra hazardous' wherever used in this act, to wit: 
 
 "Factories, mills and workshops where machinery 
 is used; printing, electrotyping, photo-engraving and 
 stereotyping plants where machinery is used; found- 
 ries, blast furnaces, mines, wells, gas works, water- 
 works, reduction works, breweries, elevators, wharves, 
 docks, dredges, smelters, powder works; laundries 
 operated by power; quarries; engineering works; log- 
 ging, lumbering and ship building operations; logging, 
 street and interurban railroads; buildings being con- 
 structed, repaired, moved or demolished; telegraph, 
 telephone, electric light or power plants or lines, steam 
 heating or power plants, steamboats, tugs, ferries and 
 railroads. If there be or arise any extra hazardous 
 occupation or work other than those hereinabove 
 enumerated, it shall come under this act, and its rate
 
 TO WHOM ACT APPLIES 165 
 
 Washington 
 
 of contribution to the accident fund hereinafter es- 
 tablished, shall be, until fixed by legislation, deter- 
 mined by the department hereinafter created, upon 
 the basis of the relation which the risk involved bears 
 to the risks classified in section 4. 
 
 " 3. Definitions. In the sense of this act words 
 employed mean as here stated, to-wit: 
 
 "Factories mean undertakings in which the business 
 of working at commodities is carried on with power- 
 driven machinery, either in manufacture, repair or 
 change, and shall include the premises, yard and 
 plant of the concern. 
 
 "Workshop means any plant, yard, premises, 
 room or place wherein power-driven machinery is 
 employed and manual labor is exercised by way of 
 trade for gain or otherwise in or incidental to the 
 process of making, altering, repairing, printing or 
 ornamenting, finishing or adapting for sale or other- 
 wise any article or part of article, machine or thing, 
 over which premises, room or place the employer of 
 the person working therein has the right of access or 
 control. 
 
 "Mill means any plant, premises, room or place 
 where machinery is used, any process of machinery, 
 changing, altering or repairing any article or com- 
 modity for sale or otherwise, together with the yards 
 and premises which are a part of the plant, including 
 elevators, warehouses and bunkers. 
 
 "Mine means any mine where coal, clay, ore, 
 mineral, gypsum or rock is dug or mined under- 
 ground. 
 
 "Quarry means an open cut from which coal is 
 mined, or clay, ore, mineral, gypsum, sand, gravel 
 or rock is cut or taken for manufacturing, building 
 or construction.
 
 166 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 "Engineering work means any work of construc- 
 tion, improvement or alteration or repair of build- 
 ings, structures, streets, highways, sewers, street rail- 
 ways, railroads, logging roads, interurban railroads, 
 harbors, docks, canals; electric, steam or water power 
 plants; telegraph and telephone plants and lines; 
 electric light or power lines, and includes any other 
 works for the construction, alteration or repair of 
 which machinery driven by mechanical power is used. 
 
 "Except when otherwise expressly stated, em- 
 ployer means any person, body of persons, corporate 
 or otherwise, and the legal personal representatives 
 of a deceased employer, all while engaged in this 
 State in any extra hazardous work. 
 
 " Workman means every person in this State, who, 
 after September 30, 1911, is engaged in the employ- 
 ment of an employer carrying on or conducting any 
 of the industries scheduled or classified in section 4, 
 whether by way of manual labor or otherwise, and 
 whether upon the premises or at the plant or, he being 
 in the course of his employment, away from the plant 
 of his employer: Provided, however, That if the in- 
 jury to a workman occurring away from the plant 
 of his employer is due to the negligence or wrong of 
 another not in the same employ, the injured work- 
 man, or if death result from the injury, his widow, 
 children or dependents, as the case may be, shall 
 elect whether to take under this act or seek a remedy 
 against such other, such election to be in advance 
 of any suit under this section; and if he take under 
 this act, the cause of action against such other shall 
 be assigned to the State for the benefit of the accident 
 fund; if the other choice is made, the accident fund 
 shall contribute only the deficiency, if any, between 
 the amount of recovery against such third person
 
 TO WHOM ACT APPLIES 167 
 
 Washington 
 
 actually collected, and the compensation provided 
 or estimated by this act for such case. Any such 
 cause of action assigned to the State may be prose- 
 cuted, or compromised by the department, in its 
 discretion. Any compromise by the workman of any 
 such suit, which would leave a deficiency to be made 
 good out of the accident fund, may be made only 
 with the written approval of the department. 
 
 "Any individual employer or any member or officer 
 of any corporate employer who shall be carried upon 
 the pay roll at a salary or wage not less than the aver- 
 age salary or wage named in such pay roll and who 
 shall be injured, shall be entitled to the benefit of this 
 act as and under the same circumstances as and sub- 
 ject to the same obligations as a workman. 
 
 "Dependent means any of the following named 
 relatives of a workman whose death results from any 
 injury and who leaves surviving no widow, widower, 
 or child under the age of sixteen years, viz.: invalid 
 child over the age of sixteen years, daughter, be- 
 tween sixteen and eighteen years of age, father, 
 mother, grandfather, grandmother, step-father, step- 
 mother, grandson, granddaughter, step-son, step- 
 daughter, brother, sister, half-sister, half-brother, 
 niece, nephew, who, at the* time of the accident, are 
 dependent, in whole or in part, for their support upon 
 the earnings of the workman. Except where other- 
 wise provided by treaty, aliens, other than father 
 or mother, not residing within the United States at 
 the time of the accident, are not included. 
 
 "Beneficiary means a husband, wife, child or de- 
 pendent of a workman, in whom shall vest a right 
 to receive payment under this act. 
 
 "Invalid means one who is physically or mentally 
 incapacitated from earning.
 
 168 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 "The word 'child,' as used in this act, includes 
 a posthumous child, a child legally adopted prior 
 to the injury, and an illegitimate child legitimated 
 prior to the injury. 
 
 "The words injury or injured, as used in this act, 
 refer only to an injury resulting from some fortui- 
 tous event as distinguished from the contraction of 
 disease." 
 
 " 6. Intentional injuries status of minors. If in- 
 jury or death results to a workman from the deliber- 
 ate intention of the workman himself to produce 
 such injury or death, neither the workman nor the 
 widow, widower, child or dependent of the workman 
 shall receive any payment whatsoever out of the 
 accident fund. If injury or death results to a work- 
 man from the deliberate intention of his employer 
 to produce such injury or death, the workman, the 
 widow, widower, child or dependent of the workman 
 shall have the privilege to take under this act and 
 also have cause of action against the employer, as 
 if this act had not been enacted, for any excess of 
 damage over the amount received or receivable under 
 this act. 
 
 "A minor working at an age legally permitted under 
 the laws of this State shall be deemed sui juris 
 for the purpose of this act, and no other person shall 
 have any cause of action or right to compensation 
 for an injury to such minor workman except as ex- 
 pressly provided in this act, but in the event of a 
 lump sum payment becoming due under this act 
 to such minor workman, the management of the sum 
 shall be within the probate jurisdiction of the courts 
 the same as other property of minors." 
 
 " 17. Public and contract work. Whenever the 
 State, county or any municipal corporation shall en-
 
 TO WHOM ACT APPLIES 169 
 
 Washington 
 
 gage in any extra hazardous work in which workmen 
 are employed for wages, this act shall be applicable 
 thereto. The employer's payments into the accident 
 fund shall be made from the treasury of the State, 
 county or municipality. If said work is being done 
 by contract, the pay roll of the contractor and the 
 sub-contractor shall be the basis of computation, and 
 in the case of contract work consuming less than one 
 year in performance the required payment into the ac- 
 cident fund shall be based upon the total pay roll. 
 The contractor and any sub-contractor shall be sub- 
 ject to the provisions of the act, and the State for 
 its general fund, the county or municipal corporation 
 shall be entitled to collect from the contractor the full 
 amount payable to the accident fund, and the con- 
 tractor, in turn shall be entitled to collect from the 
 sub-contractor his proportionate amount of the pay- 
 ment. The provisions of this section shall apply to all 
 extra hazardous work done by contract, except that in 
 private work the contractor shall be responsible, pri- 
 marily and directly, to the accident fund for the proper 
 percentage of the total pay roll of the work and the 
 owner of the property affected by the contract shall be 
 surety for such payments. Whenever and so long 
 as, by state law, city charter or municipal ordinance, 
 provision is made for municipal employe's injured in 
 the course of employment, such employe's shall not 
 be entitled to the benefits of this act and shall not 
 be included in the pay roll of the municipality under 
 this act. 
 
 " 18. Interstate commerce. The provisions of this 
 act shall apply to employers and workmen engaged in 
 intrastate and also in interstate or foreign commerce, 
 for whom a rule of liability or method of compensation 
 has been or may be established by the Congress of the
 
 170 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 United States, only to the extent that their mutual 
 connection with intrastate work may and shall be 
 clearly separable and distinguishable from interstate 
 or foreign commerce, except that any such employer 
 and any of his workmen working only in this State 
 may, with the approval of the department, and so far 
 as not forbidden by any act of Congress, voluntarily 
 accept the provisions of this act by filing written ac- 
 ceptances with the department. Such acceptances, 
 when filed with and approved by the department, 
 shall subject the acceptors irrevocably to the pro- 
 visions of this act to all intents and purposes as if they 
 had been originally included in its terms. Payment of 
 premium shall be on the basis of the pay roll of the 
 workmen who accept as aforesaid. 
 
 " 19. Elective adoption of act. Any employer and 
 his employe's engaged in works not extra hazardous 
 may, by their joint election, filed with the department, 
 accept the provisions of this act, and such acceptances, 
 when approved by the department, shall subject them 
 irrevocably to the provisions of this act to all intents 
 and purposes as if they had been originally included 
 in its terms. Ninety per cent of the minimum rate 
 specified in section 4 shall be applicable to such case 
 until otherwise provided by law." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-3. Except as regards employe's working 
 in shops or offices of a railroad company, who are 
 within the provisions of subsection 9 of section 1816 
 of the statutes, as amended by chapter 254 of the 
 laws of 1907, the term 'employer' as used in the two 
 preceding sections of this act shall not include any
 
 TO WHOM ACT APPLIES 171 
 
 Wisconsin 
 
 railroad company as defined in subsection 7 of said sec- 
 tion 1816 as amended, said section 1816 and amenda- 
 tory acts being continued in force unaffected, except 
 as aforesaid, by the preceding sections of this act. 
 
 The Compensation Act of Wisconsin applies to all 
 employers of labor who have elected to come within 
 its provisions, except certain employes of railroads (who 
 are protected under another statute. See 2394-3, 
 above), casual employes and those whose employment 
 is not in the usual course of the trade, business, pro- 
 fession, or occupation of the employer. See 2394-7 
 (2) below, in this chapter. 
 
 "2394-4. Liability for the compensation here- 
 inafter provided for, in lieu of any other liability 
 whatsoever, shall exist against an employer for any 
 personal injury accidentally sustained by his em- 
 ploye, and for his death, if the injury shall proximately 
 cause death, in those cases where the following con- 
 ditions of compensation concur: 
 
 "1. Where, at the time of the accident, both the 
 employer and employe are subject to the provisions 
 of this act according to the succeeding sections hereof. 
 
 "2. Where, at the time of the accident, the em- 
 ploye is performing service growing out of and in- 
 cidental to his employment. 
 
 "3. Where the injury is proximately caused by 
 accident, and is not so caused by willful misconduct. 
 
 "And where such conditions of compensation exist 
 for any personal injury or death, the right to the re- 
 covery of such compensation pursuant to the pro- 
 visions of this act, and acts amendatory thereof, shall 
 be the exclusive remedy against the employer for such
 
 172 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 injury or death; in all other cases the liability of the 
 employer shall be the same as if this and the succeed- 
 ing sections of this act had not been passed, but shall 
 be subject to the provisions of the preceding sections 
 of this act. 
 
 "2394-5. The following shall constitute employ- 
 ers subject to the provisions of this act within the 
 meaning of the preceding section: 
 
 " 1. The State, and each county, city, town, village, 
 and school district therein. 
 
 "2. Every person, firm, and private corporation 
 (including any public service corporation), who has 
 any person in service under any contract of hire, ex- 
 press or implied, oral or written, and who, at or prior 
 to the time of the accident to the employe" for which 
 compensation under this act may be claimed, shall, in 
 the manner provided in the next section, have elected 
 to become subject to the provisions of this act, and 
 who shall not, prior to such accident, have effected a 
 withdrawal of such election, in the manner provided 
 in the next section. 
 
 "2394-6. Such election on the part of the em- 
 ployer shall be made by filing with the industrial acci- 
 dent board, hereinafter provided for, a written state- 
 ment to the effect that he accepts the provisions of 
 this act, the filing of which statement shall operate, 
 within the meaning of section 2394-5 of this act, to 
 subject such employer to the provisions of this act 
 and all acts amendatory thereof for the term of one 
 year from the date of the filing of such statement, and 
 thereafter, without further act on his part, for suc- 
 cessive terms of one year each, unless such employer 
 shall, at least sixty days prior to the expiration of 
 such first or any succeeding year, file in the office of 
 said board a notice in writing to the effect that he
 
 TO WHOM ACT APPLIES 173 
 
 Wisconsin 
 
 desires to withdraw his election to be subject to the 
 provisions of the act. 
 
 " 2394-7. The term ' employe ' as used in sec- 
 tion 2394-4 of this act shall be construed to mean: 
 
 "1. Every person in the service of the State, or of 
 any county, city, town, village, or school district 
 therein, under any appointment, or contract of hire, 
 express or implied, oral or written, except any official 
 of the State, or of any county, city, town, village, or 
 school district therein, provided that one, employed by 
 a contractor, who has contracted with a county, city, 
 town, village, school district, or the State, through 
 its representatives, shall not be considered an em- 
 ploye" of the State, county, city, town, village, or 
 school district which made the contract. 
 
 "2. Every person in the service of another under 
 any .contract of hire, express or implied, oral or written, 
 including aliens, and also including minors who are 
 legally permitted to work under the laws of the State 
 (who, for the purposes of the next section of this act, 
 shall be considered the same and shall have the same 
 power of contracting as adult employes), but not in- 
 cluding any person whose employment is but casual 
 or is not in the usual course of the trade, business, 
 profession, or occupation of his employer. 
 
 Casual employe. 
 
 Just what is a "casual" employment has been the 
 subject of much discussion and a good deal of confusion. 
 "Casual" means coming without regularity. A laun- 
 dress who comes once a week or at other "regular" 
 intervals is not a casual employe, because she is em- 
 ployed at regular although infrequent intervals. Dew- 
 hurst v. Mather (1908), 2 K. B. 754. On the other hand,
 
 174 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 a window cleaner to whom a job is given now and then 
 is a casual employe". Hill v. Begg (1908), 2 K. B. 802. 
 (See ante, page 121, for a further discussion of this 
 point.) 
 
 The provision of the British Compensation Act under 
 which the foregoing decisions were made provides as 
 follows: 
 
 "'Workman' does not include * * * a person whose 
 employment is of a casual nature and who is employed 
 otherwise than for the purpose of the employer's trade 
 or business." Workman's Compensation Act 1906; 
 Act XIII; 6 Edward VII, c. 58. See Chapter XXXVIII. 
 
 " 2394-8. Any employe as defined in subsection 1 
 of the preceding section shall be subject to the 
 provisions of this act and of any act amendatory 
 thereof. Any employe as defined in subsection 2 of 
 the preceding section shall be deemed to have ac- 
 cepted and shall, within the meaning of section 2394- 
 4 of this act, be subject to the provisions of this act 
 and of any act amendatory thereof, if, at the time of 
 the accident upon which liability is claimed : 
 
 "1. The employer charged with such liability is 
 subject to the provisions of this act, whether the em- 
 ploye has actual notice thereof or not; and 
 
 "2. Such employe shall not, at the time of entering 
 into his contract of hire, express or implied, with such 
 employer, have given to his employer notice in writing 
 that he elects not to be subject to the provisions of 
 this act; or, in the event that such contract of hire was 
 made in advance of such employer becoming subject 
 to the provisions of the act, such employe" shall have 
 given to his employer notice in writing that he elects 
 to be subject to such provisions, or without giving
 
 TO WHOM ACT APPLIES 175 
 
 Wisconsin 
 
 either of such notices, shall have remained in the 
 service of such employer for thirty days after the em- 
 ployer has filed with said board an election to be sub- 
 ject to the terms of this act." 
 
 " 2394-29. The board shall cause to be printed 
 and furnished free of charge to any employer or em- 
 ploye such blank forms as it shall deem requisite to 
 facilitate or promote the efficient administration of 
 this act; it shall provide a proper record book in which 
 shall be entered and indexed the name of every em- 
 ployer who shall file a statement of election under this 
 act, and the date of the filing thereof, and a separate 
 book in which shall be entered and indexed the name 
 of every employer who shall file his notice of with- 
 drawal of such election, and the date of the filing 
 thereof; and books in which shall be recorded all orders 
 and awards made by the board, and such other books 
 or records as it shall deem required by the proper and 
 efficient administration of this act; all such records to 
 be kept in the office of the board. Upon the filing of a 
 statement of election by an employer to become sub- 
 ject to the provisions of this act, the board shall forth- 
 with cause notice of the fact to be given to his 
 employes, by posting such notice thereof in several 
 conspicuous places in the office, shop, or place of busi- 
 ness of the employer, or by publishing, or in such other 
 manner as the board shall deem most effective; and 
 the board shall likewise cause notice to be given of the 
 filing of any withdrawal of such election; but not- 
 withstanding the failure to give, or the insufficiency 
 of, any such notice, knowledge of all filed statements 
 .of election and notices of withdrawal of election, and 
 of the time of the filing of the same, shall conclusively 
 be imputed to all employes."
 
 CHAPTER III 
 
 LIABILITY OF PRINCIPAL CONTRACTOR FOR INJURIES 
 TO WORKMEN OF SUBCONTRACTOR 
 
 Page Page 
 
 INTRODUCTION 176 NEW HAMPSHIRE 185 
 
 CALIFORNIA 181 NEW JERSEY 185 
 
 ILLINOIS 181 OHIO 186 
 
 KANSAS 182 RHODE ISLAND 186 
 
 MASSACHUSETTS 183 WASHINGTON 186 
 
 MICHIGAN 184 WISCONSIN 187 
 
 NEVADA 184 
 
 1. Introduction. 
 
 A majority of the compensation acts of the different 
 States contain provisions relating to the subject of this 
 chapter. Under certain circumstances others than the 
 direct employers of a workman may be held liable for 
 compensation for his injuries. The decisions under the 
 British Act containing somewhat similar provisions will 
 be found useful. 
 
 By an agreement entered into between the defendant 
 and one Lovelace, the latter was to keep an airship on 
 exhibition on the defendant's grounds, and pay the 
 wages of the turnstile man who was to be a servant of 
 the defendant corporation. Admission to the inclosure 
 to view the airship was only to be obtained by ticket 
 and the moneys collected daily by the turnstile man 
 were to be paid, one-half to Lovelace, who agreed to 
 pay the persons engaged by him, the defendant receiv- 
 ing the remainder of the receipts. For the purpose of 
 
 176
 
 LIABILITY OF PRINCIPAL CONTRACTOR 177 
 
 Introduction 
 
 carrying out the agreement Lovelace engaged a lecturer 
 whose duties were to explain the various parts of the 
 airship and the exploits of Lovelace. After the airship 
 had been on exhibition for some tune it exploded and 
 the lecturer was so severely burned that he died as a 
 result of the injuries. In a proceeding by the widow 
 of the lecturer for compensation, it was held that the 
 lecturer was not a " workman" within the meaning of 
 13 of the Compensation Act of 1906; and even as- 
 suming that the lecturer was a workman, his remedy 
 was against Lovelace and not against the defendant. 
 Waites v. Franco-British Exhibition (Incorporated) 
 (1909), 2 B. W. C. C. 199. 
 
 Two men named Jones and Acocks determined to 
 open a skating rink. They bought an existing iron 
 building and contracted with Howarth to remove it for 
 them to its new position. In the course of the work, a 
 man employed by Howarth was injured and claimed 
 compensation from Jones and Acocks, as principals, 
 within the meaning of 4 of the Act. It was held that 
 Jones and Acocks were not principals within the mean- 
 ing of the section mentioned and the application was 
 dismissed. Skates v. Jones & Co. (1910), 3 B. W. C. C. 
 460. 
 
 The deceased was a farm laborer who was in the 
 habit of working for different farmers at 2s. Qd. a day, 
 coming and going when and as he wished. He came to 
 work for the respondent at hay harvest in June, 1907, 
 and worked for him until July 4th of that year, when 
 he worked for another farmer for a week; after which 
 he came back and worked for the respondent until 
 October 10th, 1908, except on three days, at different 
 times, when he absented himself without notice, getting 
 12
 
 178 BKADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Introduction 
 
 no wages for the days when he was away. On the 
 morning of October 12th, 1908, the deceased came to 
 the respondent's house with another laborer of the same 
 kind prepared to work, and was told by the respond- 
 ent's servant to go to a neighboring farmer, Andrews, 
 who had sent a message to the respondent asking him 
 to lend him a man to help in threshing, to which the 
 respondent had answered that the deceased could go. 
 The deceased therefore went to Andrews, and while 
 threshing met with an accident which caused his death. 
 It was held that the deceased's employment was of a 
 casual nature, that he was a workman within the mean- 
 ing of 13 of the Act, but that there was no contract 
 of service between the workman and the respondent at 
 the time of the accident, and therefore dependents were 
 not entitled to compensation from the respondent. 
 Boswett v. Gilbert (1909), 2 B. W. C. C. 251. 
 
 A municipal corporation being desirous of clearing 
 land of old buildings for the purpose of extending a 
 market advertised for bids to remove the buildings and 
 accepted the proposition of one Todd who offered to 
 remove the buildings and pay 15, provided he could 
 have the bricks in the buildings. This offer was ac- 
 cepted. During the progress of the work a man em- 
 ployed by Todd was killed. It was held that the widow 
 o? the deceased could recover compensation from the 
 municipal corporation under 4 and 13 of the Act. 
 Mulrooney v. Todd and Bradford Corporation (1908), 
 100 L. T. 99; 2 B. W. C. C. 191. 
 
 Where C purchased some standing timber and con- 
 tracted with M to fell the timber and M employed his 
 son to help do the work, and the son was injured, it was 
 held that the son could not recover compensation from
 
 LIABILITY OF PRINCIPAL CONTRACTOR 179 
 
 Introduction 
 
 C as the son of M was not a workman of C's within the 
 meaning of 4 of the Act. Marks v. Carne (1908), 100 
 L. T. 950; 2 B. W. C. C. 186. 
 
 The registered owner of a steam tug chartered her to 
 another. Under the charter-party the owner was 
 bound to provide and pay a crew of two men, including 
 the deceased, and he alone had power to dismiss them. 
 The possession, control and management of the vessel 
 under the charter-party belonged to the person to 
 whom it was chartered. It was held that the owner 
 and not the charterer was the deceased's employer, 
 within the meaning of the Compensation Act. Mackin- 
 non v. Miller (1909), 46 Scotch L. R. 299; 2 B. W. C. C. 
 64. 
 
 A shipowner contracted with Williamson for the 
 cleaning of the boilers in one of his vessels. Williamson 
 engaged a number of boiler sealers to do the work, and 
 one of them, Spiers, was injured while so employed. 
 Spiers was subject to the orders of Williamson in the 
 performance of the work, a certain supervision over 
 him and the other workmen being exercised by a fore- 
 man in the employment of the shipowner. Spiers 
 received his wages from Williamson, who in turn re- 
 ceived the money in installments from the shipowner as 
 desired for payment of the wages. It was held that 
 Spiers was not in the employment of the shipowner and 
 therefore not entitled to compensation from him. 
 Spiers v. Elderslie Steamship Co. (1909), 46 Scotch L. 
 R. 893; 2 B. W. C. C. 205. The work of boiler scaling 
 on a ship is not undertaken by the shipowner in the 
 course or for the purposes of his trade or business within 
 the meaning of 4 of the Workmen's Compensation 
 Act. Id.
 
 180 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Introduction 
 
 The respondents were owners of a threshing machine 
 which they let out on hire to farmers. They were 
 bound by statute to have three men to attend the 
 machine, two to look after the engine and a third as a 
 road man. At farms the road man acted as assistant in 
 threshing, being paid for this by the farmer and not by 
 the respondents. While engaged in the threshing the 
 applicant, the road man, was injured and claimed com- 
 pensation from the respondents, who denied liability, 
 stating that the farmer was the employer. The County 
 Court judge held the respondents were the employers. 
 On appeal it was held that the County Court judge had 
 decided a question of fact, and that there was evidence 
 to support his decision. Reed v. Smith, Wilkinson & 
 Co. (1910), 3 B. W. C. C. 223. 
 
 A farmer arranged with David Walsh for the services 
 of a threshing machine, which was owned by David 
 Walsh's father, it being understood that 25 shillings 
 was the sum to be paid for the use of the machine, and 
 from this the sum of 20 shillings should go to the father 
 of David Walsh. In the course of the work David 
 Walsh's hand got caught in the machine and had to be 
 amputated. It was held that the farmer was not 
 liable to David Walsh under 4 of the Act. Walsh v. 
 Hayes (1909), 43 Irish L. T. 114; 2 B. W. C. C. 202. 
 
 A workman was drowned while mooring a ship be- 
 longing to the respondents. He was paid by a stevedore 
 who worked for the respondents and other firms. The 
 respondents contended that the workman was employed 
 by the stevedore and not by them. The stevedore gave 
 evidence that the money was paid through him merely 
 for the convenience of the respondents. The County 
 Court judge held that the man was employed directly
 
 LIABILITY OF PRINCIPAL CONTRACTOR 181 
 
 Illinois 
 
 by the respondents and not by the stevedore. On ap- 
 peal it was held that this was a question of fact and the 
 court could not interfere, as there was some evidence to 
 support the decision. Pollard v. Goole and Hull Steam 
 Towing Co. (1910), 3 B. W. C. C. 360. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 The California Act has no provision relating to this 
 subject. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 20. Any person, firm or corporation who under- 
 takes to do or contracts with others to do, or have done 
 for him, them or it, any work embraced in section 2 
 of this Act, requiring such dangerous employment of 
 employes in, or about premises where he, they or it, as 
 principal or principals, contract to do such work or 
 any part thereof, and does not require that the com- 
 pensation provided for in this Act shall be insured to 
 the employe or beneficiary by any such person, firm or 
 corporation undertaking to do such work and any 
 such person, firm or corporation who creates or carries 
 into operation any fraudulent scheme, artifice or device 
 to enable him, them or it to execute such work without 
 such person, firm or corporation being responsible to 
 the employe or beneficiaries entitled to such compen- 
 sation under the provisions of this Act, such person, 
 firm, or corporation shall be included in the term 
 'employer' and with the immediate employer shall 
 be jointly and severally liable to pay the compensation 
 herein provided for, and be subject to all the provi- 
 sions of this Act."
 
 182 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 4. Subcontracting, (a) Where any person (in this 
 section referred to as principal) undertakes to exe- 
 cute any work which is a part of his trade or business 
 or which he has contracted to perform and contracts 
 with any other person (in this section referred to as 
 the contractor) for the execution by or under the con- 
 tractor of the whole or any part of the work under- 
 taken by the principal, the principal shall be liable to 
 pay to any workman employed in the execution of the 
 work any compensation under this act which he would 
 have been liable to pay if that workman had been 
 immediately employed by him; and where compensa- 
 tion is claimed from or proceedings are taken against 
 the principal, then, in the application of this act, 
 references to the principal shall be substituted for 
 references to the employer, except that the amount 
 of compensation shall be calculated with reference to 
 the earnings of the workman under the employer by 
 whom he is immediately employed. (6) Where the 
 principal is liable to pay compensation under this 
 section, he shall be entitled to indemnity from any 
 person who would have been liable to pay compensa- 
 tion to the workman independently of this section, 
 and shall have a cause of action therefor, (c) Nothing 
 in this section shall be construed as preventing a 
 workman from recovering compensation under this 
 act from the contractor instead of the principal. 
 (d) This section shall not apply to any case where the 
 accident occurred elsewhere than on or in, or about the 
 premises on which the principal has undertaken to 
 execute work or which are otherwise under his control 
 or management, or on, in, or about the execution of
 
 LIABILITY OF PRINCIPAL CONTRACTOR 183 
 
 such work under his control or management, (e) A 
 principal contractor, when sued by a workman of a 
 subcontractor, shall have the right to implead the 
 subcontractor. (/) The principal contractor who pays 
 compensation voluntarily to a workman of a subcon- 
 tractor shall have the right to recover over against the 
 subcontractor. 
 
 "5. Remedies both against employer and stranger. 
 Where the injury for which compensation is payable 
 under this act was caused under circumstances creat- 
 ing a legal liability against some person other than the 
 employer to pay damages in respect thereof, (a) The 
 workman may take proceedings against that person 
 to recover damages and against any person liable to 
 pay compensation under this act for such compensa- 
 tion, but shall not be entitled to recover both damages 
 and compensation ; and (6) if the workman has recov- 
 ered compensation under this act, the person by whom 
 the compensation was paid, or any person who has 
 been called on to indemnify him under the section of 
 this act relating to subcontracting, shall be entitled 
 to indemnity from the person so liable to pay damages 
 as aforesaid, and shall be subrogated to the rights of 
 the workman to recover damages therefor. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part III, 17. If a subscriber enters into a con- 
 tract, written or oral, with an independent contractor 
 to do such subscriber's work, or if such contractor 
 enters into a contract with a subcontractor to do all or 
 any part of the work comprised in such contract with 
 the subscriber, and the association would, if such work 
 were executed by employes immediately employed by 
 the subscriber, be liable to pay compensation under
 
 184 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 this act to those employes, the association shall pay 
 to such employe's any compensation which would be 
 payable to them under this act if the independent 
 or subcontractor were subscribers. The association, 
 however, shall be entitled to recover indemnity from 
 any other person who would have been liable to such 
 employes independently of this section, and if the 
 association has paid compensation under the terms 
 of this section, it may enforce in the name of the em- 
 ploye 1 , or in its own name and for the benefit of the 
 association, the liability of such other person. This 
 section shall not apply to any contract of an inde- 
 pendent or subcontractor which is merely ancillary 
 and incidental to, and is no part of or process in, the 
 trade or business carried on by the subscriber, nor to 
 any case where the injury occurred elsewhere than on, 
 in, or about the premises on which the contractor has 
 undertaken to execute the work for the subscriber 
 or which are under the control or management of the 
 subscriber." 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 The Michigan Act contains no provision on this 
 subject. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 "10. If any employer who shall be the principal, 
 enters into a contract with an independent contractor 
 to do part of such employer's work, or if such con- 
 tractor enters into a contract with a subcontractor to 
 do all or any part of the work comprised in such con- 
 tractor's contract with the employer, the said principal
 
 LIABILITY OF PRINCIPAL CONTRACTOR 185 
 
 New Jersey 
 
 shall be liable to pay to any workman employed in the 
 execution of the work, any compensation under this 
 act, which he would have been liable to pay if that 
 workman had been immediately employed by him; 
 and where compensation is claimed from the principal, 
 then reference to the principal shall be substituted for 
 reference to the employer, except the amount of com- 
 pensation shall be calculated with reference to the earn- 
 ings of the workman under the contractor or employer 
 by whom he is immediately employed. Where such 
 principal is liable to pay compensation he shall be 
 entitled to be indemnified by any person who would 
 have been liable to pay compensation to the workman 
 independently of this section. Nothing in this section 
 shall be construed as preventing a workman from 
 recovering compensation under this act, from the 
 contractor or subcontractor, instead of the principal; 
 nor shall this section apply in any case where the acci- 
 dent shall occur elsewhere than on or in or about the 
 premises on which the principal has undertaken to 
 execute the work or which are otherwise under his 
 control or management." 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 The New Hampshire Act contains no provisions on 
 this subject. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "I-3. Contract not to bar liability. If an em- 
 ployer enters into a contract, written or verbal, with 
 an independent contractor to do part of such em- 
 ployer's work, or if such contractor enters into a con- 
 tract, written or verbal, with a subcontractor to do
 
 186 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 all or any part of such work comprised in such con- 
 tractor's contract with the employer, such contract or 
 subcontract shall not bar the liability of the employer 
 under this act for injury caused to an employ 6 of such 
 contractor or subcontractor by any defect in the con- 
 dition of the ways, works, machinery or plant if the 
 defect arose or had not been discovered and remedied 
 through the negligence of the employer or some one 
 entrusted by him with the duty of seeing that they 
 were in proper condition. This paragraph shall apply 
 only to actions arising under section one." 
 
 The foregoing paragraph does not apply to compen- 
 sation cases, but only to common-law actions under 
 I of the Act. There is no provision in the New Jer- 
 sey Act that contractors shall be liable *for compen- 
 sation to the employe's of subcontractors. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no provision in the Ohio Act on the subject 
 of this chapter. 
 
 RHODE ISLAND 
 (L. 1912, c. 000) 
 
 There is no provision on this subject in the Rhode 
 Island Act. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 For liability of contractors for payments due by 
 subcontractors on public works, see 17, reprinted in 
 Chapter II, ante, page 168.
 
 LIABILITY OF PRINCIPAL CONTRACTOR 187 
 
 Wisconsin 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 There is no provision in the Wisconsin Act making 
 principal contractors liable to pay compensation to 
 employes of subcontractors.
 
 CHAPTER IV 
 
 CONTRACTS EXEMPTING EMPLOYERS FROM OPERA- 
 TION OF ACT 
 
 Page Page 
 
 INTRODUCTION 188 NEW HAMPSHIRE 191 
 
 CALIFORNIA 190 NEW JERSEY 191 
 
 ILLINOIS 190 OHIO 192 
 
 KANSAS 190 RHODE ISLAND 192 
 
 MASSACHUSETTS 191 WASHINGTON 192 
 
 MICHIGAN 191 WISCONSIN 192 
 
 NEVADA 191 
 
 1. Introduction. 
 
 The provisions of the various acts that no contract 
 exempting the employer from the terms thereof are 
 somewhat anomalous, especially in regard to those 
 statutes in which it is provided that silence on the part 
 of the employer and the employe 1 , raises a presumption 
 that they have agreed in the contract of service to accept 
 the compensation principle. In considering the power to 
 annul the statutes by contract the intention of the 
 legislature in each instance should be kept in mind 
 constantly. The lawmaking bodies intended to compel 
 employers to accept compensation by depriving them 
 of their common-law defenses if they failed to do so. 
 They also intended to compel employes to adopt com- 
 pensation by enacting that the employer's common-law 
 defenses should be restored as to all such employes as 
 refuse to adopt the compensation principle. 1 Naturally 
 
 1 Not all of the compensation acts contain this penalty so far 
 as the employes are concerned. But as a general rule they do so. 
 
 188
 
 CONTRACTS EXEMPTING EMPLOYERS 189 
 
 Introduction 
 
 this plan of coercion was adopted to overcome the 
 constitutional difficulties in the way of enacting a 
 compulsory compensation law. So the legislatures said 
 to the employers and employes alike: You may agree 
 (impliedly) with each other not to adopt the com- 
 pensation doctrine, but if you do, certain penalties will 
 be inflicted. If the employer forces the agreement, 
 by refusing to accept compensation, his common-law 
 defenses shall be taken away. If, on the other hand, 
 the employe" forces the implied agreement by refusing 
 to accept compensation when his employer has already 
 indicated his intention of embracing that doctrine then 
 the employer of such employe shall have restored to 
 him his common-law defenses. The whole subject, as 
 it is worked out in this series of implied agreements, 
 made necessary by the constitutional difficulties in the 
 way of an obligatory compensation law, has produced 
 a condition which is both anomalous and confusing. 
 
 Under the British Act it is held that an agreement 
 with an employe" who had been injured, containing 
 terms different from those specified in the Act, will not 
 be upheld. British & South American Steam Navigation 
 Co. v. Neil (1910), 3 B. W. C. C. 413. 
 
 The term " contracting out" is frequently heard in 
 some quarters in connection with compensation acts. 
 It has a restricted meaning, however, and does not in- 
 clude the right generally to annul the Compensation 
 Act by contract between employer and employe. The 
 term merely refers to the right given under the statute 
 of adopting some alternative scheme of compensation 
 which will, in effect, be the same as that provided 
 under the Act. In other words, the employer himself 
 under certain conditions, or a number of employers
 
 190 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 co-operating can provide a method of compensating his 
 or their employes on a plan which may differ in detail 
 from that provided in the statute but which must be 
 the same in principle. Such plans must invariably have 
 the approval of certain public officials before they be- 
 come effective. Thus a scheme was certified under the 
 Workman's Compensation Act of 1897 and within six 
 months allowed for recertification under the Act of 
 1906, an infant who had contracted out of the Act met 
 with an accident. The scale of compensation was not 
 beneficial to the infant. It was held that the infant was 
 not bound by the contract. Morter v. Great Eastern Ry. 
 Co. (1908), 2 B. W. C. C. 480. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 No contract, rule or regulation shall exempt the em- 
 ployer from the provisions abolishing the common-law 
 defenses in actions founded on negligence. 2, Chap- 
 ter I, ante, page 9. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 13. No employe or beneficiary shall have power 
 to waive any of the provisions of this Act in regard to 
 the amount of compensation which may be payable 
 to such employe" or beneficiary hereunder." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 There is no provision in the Kansas Act on this 
 subject.
 
 CONTRACTS EXEMPTING EMPLOYERS 191 
 
 New Jersey 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 20. No agreement by an employe" to 
 waive his rights to compensation under this act shall 
 be valid." 
 
 MICHIGAN 
 
 
 (L. 1912, c. 000) 
 
 "Part 1 1, 20. No agreement by an employe" to 
 waive his rights to compensation under this act shall 
 be valid." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 The employer cannot exempt himself from the 
 section of the statute abolishing common-law de- 
 fenses. 1. See Chapter II, ante, page 150. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 The New Hampshire Act contains no provision on 
 this subject. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 Under the New Jersey Act the employer and em- 
 ploye" are permitted to annul the Compensation Act 
 as to them by contract or notice, see Chapter II, ante, 
 page 157, but of course subject to the penalties noted 
 in the introduction to this chapter.
 
 192 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no provision in the Ohio Action the subject 
 of this chapter. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 22. No waiver of rights. No agreement 
 by an employer, except as provided in Article IV, to 
 waive his rights to compensation under this act shall 
 be valid." 
 
 Article IV relates to alternative schemes which must 
 be approved by the Superior Court. See Chapter 
 XXVII. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 11. Nonwaiver of act by contract. "No employer 
 or workman shall exempt himself from the burden 
 or waive the benefits of this act by any contract, 
 agreement, rule or regulation, and any such contract, 
 agreement, rule or regulation shall be pro tanto void." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 The employer cannot by contract relieve himself 
 from the provision abolishing the common-law de- 
 fenses. 2394-2. See Chapter I, ante, page 37.
 
 CHAPTER V 
 
 TIME WITHIN WHICH NO COMPENSATION IS AL- 
 LOWED, EXCEPT MEDICAL AID 
 
 Page Page 
 
 CALIFORNIA 193 NEW HAMPSHIRE 194 
 
 ILLINOIS 193 NEW JERSEY 195 
 
 KANSAS 193 OHIO 195 
 
 MASSACHUSETTS 194 RHODE ISLAND 195 
 
 MICHIGAN 194 WASHINGTON 196 
 
 NEVADA 194 WISCONSIN 196 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 Not until the eighth day after the injury. 8, 
 subd. 2. See Chapter IX, post, page 253. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 No compensation is allowed during first six working 
 days of disability. Compensation begins on the eighth 
 day. 5, subd. b. See Chapter IX, post, page 256. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "The employer shall not be liable under this act 
 in respect of any injury which does not disable the 
 workman for the period of at least two weeks from 
 earning full wages at the work at which he is em- 
 ployed." 1 (a). 
 13 193
 
 194 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part II, 4. No compensation shall be paid under 
 this act for any injury which does not incapacitate 
 the employe" for a period of at least two weeks from 
 earning full wages, but if incapacity extends beyond 
 the period of two weeks, compensation shall begin on 
 the fifteenth day after the injury." 
 
 MICHIGAN 
 
 (L. 1912, c. 000) . 
 
 "Part II, 3. No compensation shall be paid under 
 this act for any injury which does not incapacitate the 
 employe for a period of at least two weeks from earning 
 full wages, but if incapacity extends beyond the period 
 of two weeks, compensation shall begin on the fifteenth 
 day after the injury: Provided, However, That if 
 such disability continues for eight weeks or longer, 
 such compensation shall be computed from the date 
 of the injury." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 No compensation allowed for first ten days. 1. 
 See Chapter II, ante, page 150. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 "3. * * * the employer shall not be liable in 
 respect of any injury which does not disable the work- 
 man for a period of at least two weeks from earn- 
 ing full wages at the work at which he was em- 
 ployed- * * *"
 
 TIME WITHIN WHICH NO COMPENSATION ALLOWED 195 
 Rhode Island 
 
 Compensation commences at the end of the second 
 week. 6 (2) . See Chapter IX, post, page 264. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "II, 13. No compensation first two weeks. No 
 compensation shall be allowed for the first two weeks 
 after the injury received, except as provided by para- 
 graph fourteen, 1 nor in any case unless the employer 
 has actual knowledge of the injury or is notified thereof 
 within the period specified in paragraph fifteen." 2 
 
 OHIO * 
 
 (L. 1911, c. 000) 
 
 " 25. No benefit shall be allowed for the first 
 week after the injury is received, except the disburse- 
 ment provided for in the next two preceding sections." 3 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 4. When compensation begins. No com- 
 pensation except as provided by section 12 of this 
 Article shall be paid under this act for any injury 
 which does not incapacitate the employe for a period 
 of at least two weeks from earning full wages, but, if 
 
 1 Paragraph fourteen provides for medical and hospital services 
 and medicines for first two weeks not exceeding one hundred dollars 
 in value. See Chapter VI, post, page 199. 
 
 2 Unless the employer has actual notice of the accident notice 
 must be given within thirty days. See Chapter XXI, post, page 37 1. 
 
 3 The two preceding sections (23 and 24) relate to first aid medical 
 relief (see Chapter VI, post, page 200) and funeral expenses. (See 
 Chapter VII, post, page 204.)
 
 196 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 such incapacity extends beyond the period of two 
 weeks, compensation shall begin on the fifteenth day 
 after the injury." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 The compensation begins immediately after the in- 
 jury. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-9 (2). If the accident causes disability, 
 an indemnity which shall be payable as wages on 
 the eighth day after the injured employe leaves work 
 as the result of the injury, and weekly thereafter, 
 which weekly indemnity shall be as follows," etc
 
 CHAPTER VI 
 
 MEDICAL ATTENTION 
 
 Page Page 
 
 CALIFORNIA 197 NEW HAMPSHIRE 199 
 
 ILLINOIS 197 NEW JERSEY 199 
 
 KANSAS 198 OHIO 200 
 
 MASSACHUSETTS 198 RHODE ISLAND 200 
 
 MICHIGAN 199 WASHINGTON 200 
 
 NEVADA 199 WISCONSIN 200 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "8. Where liability for compensation under this 
 Act exists the same shall be as provided in the fol- 
 lowing schedule: 
 
 "(1) Such medical and surgical treatment, medi- 
 cines, medical and surgical supplies, crutches, and 
 apparatus, as may be reasonably required at the time 
 of the injury and thereafter during the disability, 
 but not exceeding ninety days, to cure and relieve 
 from the effects of the injury, the same to be provided 
 by the employer, and in case of his neglect or refusal 
 seasonably to do so, the employer to be liable for the 
 reasonable expense incurred by or on behalf of the 
 employ 6 in providing the same; provided, however, 
 that the total liability under this subdivision shall not 
 
 exceed the sum of $100.00." 
 
 i 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 5. The amount of compensation which the em- 
 ployer who accepts the provisions of this Act shall 
 197
 
 198 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 provide and pay for injury to the employ 6 resulting 
 in disability shall be: 
 
 "a. Necessary first aid, medical, surgical, and 
 hospital services, also medicine and hospital services 
 for a period not longer than eight weeks, not to ex- 
 ceed, however, the amount of two hundred dollars, 
 also necessary services of a physician or surgeon dur- 
 ing such period of disability, unless such employ6 
 elects to secure his own physician or surgeon." 
 
 Whether medical attention under the above section 
 is limited to two hundred dollars in amount is doubtful. 
 The last part of the section beginning with the word 
 "aZso" seems to indicate that medical attention must 
 be supplied during the entire time of the disability. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 In case of the death of the workman without leav- 
 ing any dependents the employer must pay "the reason- 
 able expenses of his medical attendance and burial, 
 not exceeding one hundred dollars." 11 (a) (3). 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 5. During the first two weeks after 
 the injury, the association shall furnish reasonable 
 medicine and hospital services, and medicines when 
 they are needed." 
 
 If the injured workman dies without dependents 
 the association shall pay the reasonable expense of the 
 last sickness and burial, which shall not exceed two
 
 MEDICAL ATTENTION 199 
 
 New Jersey 
 
 hundred dollars. Part II, 8. See Chapter VII, 
 post, page 203. 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part II, 4. During the first three weeks after the 
 injury the employer shall furnish, or cause to be fur- 
 nished, reasonable medical and hospital services and 
 medicines when they are needed." 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 Medical expenses in case of death. See Chapter VII, 
 post, page 203. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 In case of death without leaving dependents medical 
 attendance and funeral expenses not to exceed one 
 hundred dollars. 6 (1) (c). See Chapter VIII, post, 
 page 222. 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 Expenses of the last sickness and burial not exceed- 
 ing $200, where the injury causes death and there are 
 no dependents, must be paid by the employer. II, 
 subd. 12 (2). See Chapter VIII, post, page 223. 
 
 "II, 14. Medical and hospital services supplied 
 first two weeks. During the first two weeks after 
 the injury the employer shall furnish reasonable 
 medical and hospital services and medicines, as and
 
 200 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 when needed, not to exceed one hundred dollars in 
 value, unless the employ^ refuses to allow them to be 
 furnished by the employer." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 23. Disbursements for first aid. The board 
 shall disburse and pay from the fund, for such injury, 
 to such employes, such amounts for medical, nurse 
 and hospital services and medicines, as it may deem 
 proper, not, however, in any case, to exceed the sum 
 of two hundred dollars, in addition to such award 
 to such employed" 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 5. Medical aid. During the first two 
 weeks after the injury the employer shall furnish 
 reasonable medical and hospital services, and med- 
 icines when they are needed, the amount of the charge 
 for such services to be fixed, in case of the failure of 
 the employer and employe" to agree, by the superior 
 court." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 There is no provision for medical attendance under 
 the Washington Act. 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 " 2394-9. Where liability for compensation under 
 this Act exists, the same shall be as provided in the 
 following schedule:
 
 MEDICAL ATTENTION 201 
 
 Wisconsin 
 
 "(1). Such medical and surgical treatment, medi- 
 cines, medical and surgical supplies, crutches, and 
 apparatus, as may be reasonably required at the time 
 of the injury and thereafter during the disability, 
 but not exceeding ninety days, to cure and relieve 
 from the effects of the injury, the same to be provided 
 by the employer; and in case of his neglect or refusal 
 seasonably to do so the employer to be liable for the 
 reasonable expense incurred by or on behalf of the 
 employe in providing the same."
 
 CHAPTER VII 
 
 FUNERAL EXPENSES 
 
 Page 
 
 CALIFORNIA 202 NEW HAMPSHIRE 203 
 
 ILLINOIS 202 NEW JERSEY. . . . '. 204 
 
 KANSAS 202 OHIO 204 
 
 MASSACHUSETTS 203 RHODE ISLAND 204 
 
 MICHIGAN 203 WASHINGTON 204 
 
 NEVADA 203 WISCONSIN 205 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 8 (3) (d) If the deceased employe leaves no per- 
 son dependent upon him for support, and the accident 
 approximately causes death, the death benefit shall 
 consist of the reasonable expenses of his burial not 
 exceeding $100." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 If employe" dies without dependents the employer 
 must pay funeral expenses not exceeding $150. See 
 4, c., Chapter VIII, post, page 214. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 If the deceased workman leaves no dependents 
 the employer must pay "the reasonable expenses of his 
 medical attendance and burial, not exceeding one 
 hundred dollars." 11 (a) (3). 
 
 202
 
 FUNERAL EXPENSES 203 
 
 New Hampshire 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 8. If the employ^ leaves no depend- 
 ents, the association shall pay the reasonable expense 
 of his last sickness and burial, which shall not exceed 
 two hundred dollars." 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part II, 8. If the employ^ leaves no dependents 
 the employer shall pay, or cause to be paid as herein- 
 after provided, the reasonable expense of his last 
 sickness and burying, which shall not exceed two 
 hundred dollars." 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 "Whatever sum is payable under this section ( 5, 
 see Chapter VIII, post, page 221) in case of death 
 of the injured workman shall be paid to his legal 
 representatives for the benefit of such dependents, 
 and if he leaves no such dependents, then to the pub- 
 lic administrator, for the benefit of the person or 
 persons to whom the expenses of medical attendance 
 and burial are due." 5, last paragraph. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 In case of death without leaving dependents medi- 
 cal attention and funeral expenses not exceeding one 
 hundred dollars. 6 (1) (c). See Chapter VIII, post, 
 page 222.
 
 204 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 Where there are no dependents, the expenses of the 
 last sickness and burial, not exceeding $200 must be 
 paid by the employer. 2, subd. 12 (2). See Chap- 
 ter VIII, post, page 223. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 "24. Funeral expenses. In case death ensues 
 from the injury reasonable funeral expenses, not to 
 exceed one hundred and fifty dollars, shall be paid 
 from the fund, in addition to such award to such 
 employe"." 
 
 RHODE ISLAND 
 (L. 1912, c. 000) 
 
 ' Art. II, 9. Funeral expenses. If the employe* 
 dies as a result of the injury leaving no dependents at 
 the time of the injury, the employer shall pay, in 
 addition to any compensation provided for in this act 
 the reasonable expense of his last sickness and burial, 
 which shall not exceed two hundred dollars." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 Expenses of burial, not to exceed $75, shall be paid 
 in all cases of death. 5 (a). See Chapter VIII, 
 post, page 227.
 
 FUNERAL EXPENSES 205 
 
 Wisconsin 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394r-9 (3) (d). If the deceased employe" leaves 
 no person dependent upon him for support, and the 
 accident proximately causes death, the death benefit 
 shall consist of the reasonable expense of his burial, 
 not exceeding $100."
 
 CHAPTER VIII 
 
 COMPENSATION TO DEPENDENTS FOR DEATH 
 
 Page 
 
 1. Introduction 207 
 
 2. Death not natural or probable consequence of injury 207 
 
 3. Suicide while insane from loss of eyesight 207 
 
 4. When death occurs after compensation has been paid for a 
 
 time 208 
 
 5. Illegitimate child 208 
 
 6. Presumption of death from absence 208 
 
 7. Total dependency of mother on one son when other sons 
 
 are living 209 
 
 8. Amount due partial dependents is a question of fact 209 
 
 9. Compensation for previous injury not included in determin- 
 
 ing basis of compensation for subsequent injury causing 
 death 210 
 
 10. Deducting wages paid to an assistant in computing com- 
 
 pensation 210 
 
 11. Deducting poor-law relief received by dependent 210 
 
 12. Estoppel by payment of compensation before death, of 
 
 right to deny liability therefor after death 211 
 
 13. Death from anaesthetic administered for the purpose of 
 
 performing operation 211 
 
 14. Claim for compensation by personal representative of de- 
 
 ceased dependent 212 
 
 Page Page 
 
 CALIFORNIA 212 NEW HAMPSHIRE 221 
 
 ILLINOIS 213 NEW JERSEY 222 
 
 KANSAS 217 OHIO 224 
 
 MASSACHUSETTS 218 RHODE ISLAND 225 
 
 MICHIGAN 219 WASHINGTON 227 
 
 NEVADA 220 WISCONSIN 229 
 
 1 See Chapter II for a discussion of the question as to whom the 
 acts apply. See Chapter IX for discussion of manner of arriving at 
 
 206
 
 COMPENSATION TO DEPENDENTS FOR DEATH 207 
 
 Suicide while insane from loss of eyesight 
 
 1. Introduction. 
 
 Probably on no subject is there a greater variety of 
 provisions in the various statutes than on the questions 
 of the amounts and the persons to whom paid in the 
 case of death. Some general rules found in the adjudi- 
 cated cases doubtless will be found to be helpful in 
 solving the numerous problems which will develop in 
 an interpretation of the various statutes. 
 
 The statutes generally fix a method of determining 
 the death benefit payable to dependents by the wages 
 earned by the workman prior to his death and provide 
 in the same manner for determining the amounts pay- 
 able for permanent or temporary disability. The ques- 
 tion of the method of arriving at the "average wages" 
 of the workman is discussed in Chapter IX following. 
 
 2. Death not natural or probable consequence of 
 
 injury. 
 
 Where death results from injury dependents can re- 
 cover although death may not have been the natural 
 or probable consequences of the particular injury. 
 Dunham v. Clare (1902), 66 L. T. 751; 4 W. C. C. 102. 
 
 3. Suicide while insane from loss of eyesight. 
 
 A workman who had previously lost the sight of one 
 eye received injuries to the other in the course of the 
 employment. He became almost blind. In conse- 
 quence his nervous system broke down and insanity 
 followed. He later committed suicide. His widow 
 applied for compensation and the application was dis- 
 missed as irrelevant by the arbitrator. It was held on 
 
 average wages. See Chapter XVI for a discussion of the question 
 as to who are dependents.
 
 Presumption of death from absence 
 
 appeal that, without saying whether or not the claim 
 could eventually be made out, the claimant was en- 
 titled to go to proof, and the arbitrator ought not to 
 have dismissed the case as irrelevant upon its face. 
 Malone v. Cayzer, Irvine & Co. (1908), 45 Scotch L. R. 
 351; IB. W. C. C. 27. 
 
 4. When death occurs after compensation has been 
 
 paid for a time. 1 
 
 An employe" in receipt of compensation returned to 
 work and earned more than he did before the accident. 
 Later he died as a result of the injury. It was held 
 that his dependents were entitled to compensation 
 allowed for death, less the sums paid to the workman 
 in his lifetime. Williams v. Vauxhall Colliery Co. 
 (1907), 23 T. L. R. 591; 9 W. C. C. 120. Dependents 
 are entitled to compensation, although the deceased 
 may have been in the receipt of weekly payments under 
 the Act. O'Keefe v. Lovatt (1901), 4 W. C. C. 109. 
 
 6. Illegitimate child. 2 
 
 Where compensation is awarded to an illegitimate 
 child, it should not be in a sum greater than the de- 
 ceased could have been compelled by law to pay for 
 the child's support. Gourlay v. Murray (1908), 45 
 Scotch L. R. 577; 1 B. W. C. C. 335. 
 
 6. Presumption of death from absence. 3 
 
 The lapse of twelve months during which a ship has 
 
 1 This subject is dealt with specifically in the various statutes. 
 
 2 See Chapter XVI as to who are dependents. 
 
 3 Most of the States have laws providing for temporary adminis- 
 tration on the estates of those who have been absent for a certain 
 length of time without having been heard from. Under the rule
 
 COMPENSATION TO DEPENDENTS FOR DEATH 209 
 
 Amount due partial dependent is a question of fact 
 
 not been heard from, after which, under 174 of the 
 British Merchant Shipping Act of 1894, she is deemed 
 to have been lost with all hands, is not a condition 
 precedent to a claim for compensation under the 
 Workmen's Compensation Act, where by the ordinary 
 rules of evidence a seaman would be deemed to have 
 been lost at sea with his ship, an application for com- 
 pensation may be made, notwithstanding that twelve 
 months have not elapsed from the time when the ship 
 was last heard of. Maginn v. Carlingford Lough Steam- 
 ship Co. (1909), 43 Irish L. T. 123; 2 B. W. C. C. 224. 
 
 7. Total dependency of mother on one son when other 
 
 sons are living. 1 
 
 A widow, who had five grown up sons and who were 
 all working miners, lived with one of them, the only 
 unmarried one, and was in fact entirely supported by 
 his earnings at the tune of his death. It was held that 
 she was totally dependent upon the earnings of her son, 
 notwithstanding the other sons were able and liable to 
 contribute to her support. Rintoul v. Dalmeny Oil Co. 
 (1908), 45 Scotch L. R. 809; 1 B. W. C. C. 340. 
 
 8. Amount due partial dependent is a question of fact. 2 
 The amount due to a partial dependent is a question 
 
 laid down in the case in the text it is not necessary to await the 
 statutory period in all cases even though there is no direct evidence 
 of death. There must, however, be common-law evidence which 
 raises a presumption of death from the circumstances disclosed. 
 This is really nothing more than saying that there must be sufficient 
 common-law evidence from which the court can find as a fact that 
 the workman is dead. 
 
 1 See Chapter XVI for a discussion of who are dependents. 
 
 2 See Chapter XXIV for procedure in determining dependency. 
 
 14
 
 210 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Deducting poor-law relief received by dependent 
 
 of fact in each case. Littleford v. Connell (1909), 3 B. 
 W. C. C. 1. 
 
 9. Compensation for previous injury not included in 
 
 determining basis of compensation for subse- 
 quent injury causing death. 
 
 A workman who had been a collier in the respond- 
 ents' mine was, at the time of his death, employed at 
 light work. He had previously met with an accident 
 in the same employment, and was at the time of the 
 second accident, which proved fatal, receiving the same 
 compensation in addition to the wages for the light 
 work. It was held that the compensation which the 
 deceased workman was receiving could not be taken 
 into account in estimating the earning in the employ- 
 ment. Gough v. Crawshay Brothers, 1 B. W. C. C. 374. 
 
 10. Deducting wages paid to an assistant in com- 
 puting compensation. 1 
 
 Where a miner was killed it was held that the portion 
 of his wages which he paid to an assistant should be 
 deducted in computing the compensation, but that the 
 cost of the explosives bought by him in the prosecution 
 of the work, should not, under 2, subsection (d) be 
 deducted, in computing such compensation. M'Kee v. 
 John S. Stein & Co. (1909), 47 Scotch L. R. 39; 3 B. W. 
 C. C. 544. 
 
 11. Deducting poor-law relief received by dependent. 2 
 The mother of a deceased workman earning 1 
 
 Also see Chapter XVI for a discussion of the question of who are 
 dependents. 
 
 1 See Chapter IX for a further discussion of this subject. 
 
 2 See Chapter IX for further discussion of basis of compensation.
 
 COMPENSATION TO DEPENDENTS FOR DEATH 211 
 
 Death from anaesthetic 
 
 weekly claimed compensation as a partial dependent. 
 She was, before and after her son's death, in receipt of 
 poor-law relief of 2 shillings weekly, and received 14 
 shillings weekly from deceased. It was held that the 
 method of calculating the sum was to award three 
 years' earnings, and then to deduct from that three 
 years at 2 shillings weekly, for the space of three years. 
 Byks v. Pool and another (1909), 2 B. W. C. C. 484. 
 
 12. Estoppel by payment of compensation before 
 death of right to deny liability therefor after 
 death. 
 
 Where an employer has paid compensation up to the 
 time of the death of a workman under a registered 
 agreement, he is not estopped, after the death of the 
 workman, from contending that the death was due to 
 disease and not to the accident. (House of Lords) 
 Ckverley & Others v. Gas Light & Coke Co. (1907), 1 
 B. W. C. C. 82. 
 
 13. Death from anaesthetic administered for the pur- 
 pose of performing operation. 
 
 A workman's hand was caught between two rollers 
 and severely injured. In the ordinary course the hand 
 would have been amputated, but the surgeon en- 
 deavored to save the hand by thoroughly cleansing the 
 wound. This being very painful, an anaesthetic was 
 administered, and this operation, which was described 
 as a "bold experiment" was successful, but two months 
 after the first operation, in order to prevent contraction, 
 which would have rendered the hand rigid and prac- 
 tically useless, it became necessary to graft some skin 
 on the hand. This operation being painful, though not 
 dangerous, an ansesthetic was again administered, and
 
 212 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 the man died under it. It was held that death resulted 
 from the original injury and the widow was entitled to 
 compensation. Shirt v. The Calico Printers' Ass'n 
 (1909), 100 L. T. 740; 2 B. W. C. C. 342. 
 
 14. Claim for compensation by personal representa- 
 tive of deceased dependent. 1 
 
 The right to compensation growing out of the death 
 of a workman passes to the personal representatives of 
 the deceased dependent. Darlington v. Roscoe & Sons 
 (1906), 8 W. C. C. 4. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "8 (3). The death of the injured employ^ shall 
 not affect the obligation of the employer under sub- 
 sections (1) and (2) of this section, so far as his liability 
 shall have accrued and become payable at the time of 
 the death, but the death shall be deemed the termina- 
 tion of disability, and the employer shall thereupon 
 be liable for the following death benefits in lieu of any 
 further disability benefits, provided that such death 
 was approximately caused by the accident causing 
 such disability: 
 
 " (a) In case the deceased employe leaves a person 
 or persons wholly dependent upon him for support, 
 the death benefit shall be a sum sufficient when added 
 to the benefits which shall, at the time of death, have 
 accrued and become payable under the provisions of 
 subsection (2) of this section to make the total com- 
 pensation for the injury and death [exclusive of the 
 benefit provided for in subsection (1) ], equal to three 
 times his annual average earnings, not less than 
 
 1 See also Chapter XVI, post, page 324.
 
 COMPENSATION TO DEPENDENTS FOR DEATH 213 
 
 Illinois 
 
 $1,000 nor more than $5,000, the same to be payable, 
 unless and until the industrial accident board shall 
 otherwise direct in weekly installments corresponding 
 in amount to the weekly earnings of the employe*. 
 
 "(6) In case the deceased employ 6 leaves no one 
 wholly dependent on him for support, but one or more 
 persons partially dependent therefor, the death bene- 
 fit shall be such percentage of three times such average 
 annual earnings of the employe as the annual amount 
 devoted by the deceased to the support of the person 
 or persons so partially dependent upon him for support 
 bears to such average earnings, the same to be payable, 
 unless and until the industrial accident board shall 
 otherwise direct, in weekly installments corresponding 
 to the weekly earnings of the employe"; provided, that 
 the total compensation for the in jury and death, [exclu- 
 sive of the benefit provided for in said subsection(l)] 
 shall not exceed three times such average annual earn- 
 ings. 
 
 " (c) In the event that the accident shall have ap- 
 proximately caused permanent disability, either total 
 or partial, and the employe* shall die within fifteen 
 years after the date of the accident, liability for the 
 death benefits provided for in said subsections (a) and 
 (6) respectively shall exist only where the accident 
 was the approximate cause of death within said period 
 of fifteen years." 
 
 If no dependents are left funeral expenses not ex- 
 ceeding $100. See 8 (3) (d). See Chapter VII, 
 ante, page 202. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 4. The amount of compensation which the em- 
 ployer who accepts the provisions of this Act shall pay
 
 214 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 for injury to the employee which results in death, 
 shall be: 
 
 "a. If the employe" leaves any widow, child or 
 children, or parent or other lineal heirs to whose sup- 
 port he had contributed within five years previous to 
 the time of his death, a sum equal to four times the 
 average annual earnings of the employe", but not less 
 in any event than one thousand five hundred dollars, 
 and not more in any event than three thousand five 
 hundred dollars. Any weekly payments, other than 
 necessary medical or surgical fees, shall be deducted 
 in ascertaining such amount payable on death. 
 
 "6. If the employ^ leaves collateral heirs dependent 
 upon his earnings, such a percentage of the sum pro- 
 vided in Section 'a' as the contributions which de- 
 ceased made to the support of these dependents, bore 
 to his earnings. 
 
 "c. If the employ 6 leaves no widow or child or 
 children, parents or lineal or collateral heirs dependent 
 upon his earnings, a sum not to exceed one hundred 
 and fifty dollars for burial expenses. 
 
 "d. All compensation provided for in this section 
 to be paid in case injury results in death, shall be paid 
 in installments equal to one-half the average earnings, 
 at the same intervals at which the wages or earnings 
 of the employe" were paid while he was living; or if 
 this shall not be feasible, then the installments shall 
 be paid weekly. 
 
 "e. The compensation to be paid for injuries which 
 result in death, as provided for in this section, shall 
 be paid to the personal representative of the deceased 
 employe" and shall be distributed by such personal 
 representative to the beneficiaries entitled thereto, in 
 accordance with the laws of this State relating to the 
 descent and distribution of personal property."
 
 COMPENSATION TO DEPENDENTS FOR DEATH 215 
 Illinois 
 
 In case of death after a period of payment for dis- 
 ability see 5, subdivision e (1) in Chapter IX, post, 
 page 257. 
 
 "6. The basis for computing the compensation 
 provided for in Sections 4 and 5 of this Act shall be as 
 follows: 
 
 "a. The compensation shall be computed on the 
 basis of the annual earnings which the injured person 
 received as salary, wages or earnings in the employ- 
 ment of the same employer during the year next pre- 
 ceding the injury. 
 
 "6. Employment by the same employer shall be 
 taken to mean employment by the same employer in 
 the grade in which the employ^ was employed at 
 the time of the accident, uninterrupted by absence 
 from work due to illness or any other unavoidable 
 cause. 
 
 "c. The annual earnings if not otherwise deter- 
 minable shall be regarded as three hundred times the 
 average daily earnings in such computation. 
 
 "d. If the injured person has not been engaged in 
 the employment for a full year immediately preceding 
 the accident, the compensation shall be computed ac- 
 cording to the annual earnings, which persons of the 
 same class in the same or in neighboring employments 
 of the same kind have earned during such period. And 
 if this basis of computation is impossible, or should 
 appear to be unreasonable, three hundred times the 
 amount which the injured person earned on an average 
 on those days when he was working during the year 
 next preceding the accident, shall be used as a basis 
 for the computation. 
 
 "e. In the case of injured employe's who earn either 
 no wage or less than three hundred times the usual
 
 216 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 daily wage or earnings of the adult day laborers in the 
 same line of industry of that locality, the yearly wage 
 shall be reckoned as three hundred times the average 
 daily local wage. 
 
 "/. As to employe's in employments in which it is 
 the custom to operate for a part of the whole number 
 of working days in each year, such number shall be 
 used instead of three hundred as a basis for computing 
 the annual earnings, provided the minimum number 
 of days which shall be used for the basis of the year's 
 work shall be not less than two hundred. 
 
 "g. Earnings, for the purpose of this section, shall 
 be based on the earnings for the number of hours com- 
 monly regarded as a day's work for that employment, 
 and shall exclude overtime earnings. The earnings 
 shall not include any sum which the employer has 
 been accustomed to pay the employe" to cover any 
 special expense entailed on him by the nature of his 
 employment. 
 
 "h. In computing the compensation to be paid to 
 any employe" who, before the accident for which he 
 claims compensation, was disabled and drawing com- 
 pensation under the terms of this Act, the compensa- 
 tion for each subsequent injury shall be apportioned 
 according to the proportion of incapacity and dis- 
 ability caused by the respective injuries which he may 
 have suffered. 
 
 " 7. The compensation herein provided shall be 
 the measure of the responsibility which the employer 
 has assumed for injuries or death that may occur to 
 employe's in his employment subject to the provisions 
 of this Act, and it shall not be in any way reduced by 
 contributions from employe's. 
 
 " 8. If it is proved that the injury to the employe* 
 resulted from his deliberate intention to cause such
 
 COMPENSATION TO DEPENDENTS FOR DEATH 217 
 
 Kansas 
 
 injury, no compensation with respect to that injury 
 shall be allowed. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 11. Amount of compensation. The amount of 
 compensation under this act shall be, (a) Where death 
 results from injury: (1) If the workman leaves any 
 dependents wholly dependent upon his earnings, an 
 amount equal to three times his earnings for the pre- 
 ceding year but not exceeding thirty-six hundred 
 dollars and not less than twelve hundred dollars, pro- 
 vided, such earnings shall be computed upon the basis 
 of the scale which he received or would have been en- 
 titled to receive had he been at work, during the thirty 
 days next preceding the accident; and, if the period 
 of the workman's employment by the said employer 
 had been less than one year, then the amount of his 
 earnings during the said year shall be deemed to be 
 fifty-two times his average weekly earnings during 
 the period of his actual employment under said em- 
 ployer; provided, that the amount of any payments 
 made under this act and any lump sum paid hereunder 
 for such injury from which death may thereafter re- 
 sult shall be deducted from such sum; and provided, 
 however, that if the workman does not leave any de- 
 pendents, citizens of and residing at the time of the 
 accident in the United States or the Dominion of 
 Canada, the amount of compensation shall not exceed 
 in any case seven hundred and fifty dollars. (2) If 
 the workman does not leave any such dependents, but 
 leaves any dependents in part dependent upon his 
 earnings, such proportion of the amount payable under 
 the foregoing provisions of this section, as may be
 
 218 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 agreed upon or determined to be proportionate to the 
 injury to the said dependents; and (3) if he leaves no 
 dependents, the reasonable expense of his medical 
 attendance and burial, not exceeding one hundred 
 dollars." 
 
 For the rule of compensation, that is, the manner of 
 computing the wages to be made the basis of the award 
 for compensation, see 12, reprinted in Chapter IX, 
 post, page 259. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part II, 6. If death results from the injury, 
 the association shall pay the dependents of the em- 
 ploye 1 , wholly dependent upon his earnings for sup- 
 port at the time of the injury, a weekly payment equal 
 to one-half his average weekly wages, but not more 
 than ten dollars nor less than four dollars a week, 
 for a period of three hundred weeks from the date 
 of the injury. If the employ 6 leaves dependents 
 only partly dependent upon his earnings for support 
 at the time of his injury, the association shall pay such 
 dependents a weekly compensation equal to the same 
 proportion of the weekly payments for the benefit 
 of persons wholly dependent as the amount con- 
 tributed by the employe" to such partial dependents 
 bears to the annual earnings of the deceased at the 
 time of his injury. When weekly payments have been 
 made to an injured employe" before his death, the com- 
 pensation to dependents shall begin from the date 
 of the last of such payments, but shall not continue 
 more than three hundred weeks from the date of the 
 injury." 
 
 "Part II, 12. No savings or insurance of the
 
 COMPENSATION TO DEPENDENTS FOR DEATH 219 
 
 Michigan 
 
 injured employe, independent of this act, shall be 
 taken into consideration in determining the com- 
 pensation to be paid hereunder, nor shall benefits 
 derived from any other source than the association 
 be considered in fixing the compensation under this 
 act. 
 
 " 13. The compensation payable under this act 
 in case of the death of the injured employe" shall be 
 paid to his legal representative; or, if he has no legal 
 representative, to his dependents; or, if he leaves 
 no dependents, to the persons to whom payment of 
 the expenses for the last sickness and burial is due. 
 If the payment is made to the legal representative 
 of the deceased employe", it shall be paid by him 
 to the dependents or other persons entitled thereto 
 under this act." 
 
 MICHIGAN 
 (L. 1912, c. 000) 
 
 "Part II, 5. If death results from the injury, the 
 employer shall pay, or cause to be paid, subject, how- 
 ever, to the provisions of section twelve hereof, in one 
 of the methods hereinafter provided, to the dependents 
 of the employe", wholly dependent upon his earnings 
 for support at the time of the injury, a weekly pay- 
 ment equal to one-half his average w r eekly wages, but 
 not more than ten dollars nor less than four dollars a 
 week for a period of three hundred weeks from the date 
 of the injury. If the employe" leaves dependents only 
 partly dependent upon his earnings for support at the 
 time of his injury, the weekly compensation to be paid 
 as aforesaid shall be equal to the same proportion of 
 the weekly payments for the benefit of persons wholly 
 dependent as the amount contributed by the employe" 
 to such partial dependents bears to the annual earn-
 
 220 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 ings of the deceased at the time of his injury. When 
 weekly payments have been made to an injured em- 
 ploye* before his death the compensation to depend- 
 ents shall begin from the date of the last of such pay- 
 ments, but shall not continue more than three hundred 
 weeks from the date of the injury." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 "5. The amount of compensation in case death 
 results from injury, or for death accruing within five 
 years as a result of injury, shall be: 
 
 "(a) If the workman leave any person or persons 
 who at the time of the accident were wholly dependent 
 upon his earnings, a sum equal to his earnings in the 
 employment of the same employer during the three 
 years next preceding the injury, or the sum of two 
 thousand dollars, whichever of these sums is the 
 greater, but not exceeding in any case three thousand 
 dollars; provided, that the total sum of any weekly pay- 
 ments made under this act shall be deducted from such 
 sum; and if the period of the workman's employ- 
 ment by the same employer has been less than the 
 said three years, then the amount of his earnings dur- 
 ing the said three years shall be deemed to be nine 
 hundred and thirty-six times his average daily earn- 
 ings during the period of his actual employment under 
 the same employer; 
 
 " (6) If the workman leave only person or persons 
 who at the time of the accident were partly dependent 
 upon his earnings, a sum equal to 50 per cent of the 
 amount payable under the foregoing provisions of 
 this section; 
 
 " (c) If the workman leave no person at the time of 
 the accident who was dependent upon his earnings,
 
 COMPENSATION TO DEPENDENTS FOR DEATH 221 
 New Hampshire 
 
 the reasonable expenses of his medical attendance 
 and burial, not exceeding in all three hundred dollars. 
 "Whatever sum is payable under this section in 
 case of death of the injured workman shall be paid 
 to his legal representatives for the benefit of such de- 
 pendents, and if he leaves no such dependents then 
 to the public administrator, for the benefit of the 
 person or persons to whom the expenses of medical 
 attendance and burial are due." 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 "6 (1) The amount of compensation shall be, 
 in case death results from injury: 
 
 "(a) If the workman leaves any widow, children 
 or parents, resident of this State, at the time of his 
 death, then wholly dependent on his earnings, a sum 
 to compensate them for loss, equal to one hundred 
 and fifty times the average weekly earning of such 
 workman when at work on full time during the pre- 
 ceding year during which he shall have been in the 
 employ of the same employer, or if he shall have been 
 in the employment of the same employer for less than 
 a year then one hundred and fifty times his average 
 weekly earnings on full time for such less period. 
 But in no event shall such sum exceed $3,000. Any 
 weekly payment made under this Act shall be de- 
 ducted from the sum so fixed. 
 
 "(6) If such widow, children or parents at the time 
 of his death are in part only dependent upon his 
 earnings, such proportion of the benefits provided 
 for those wholly dependent as the amount of wage 
 contributed by the deceased to such partial dependents 
 at the time of injury bore to the total wage of the 
 deceased.
 
 222 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 "(c) If he leaves no such dependents, the reason- 
 able expenses of his medical attendance and burial, 
 not exceeding one hundred dollars. 
 
 "Whatever sum may be determined to be payable 
 under this Act in case of death of the injured work- 
 man shall be paid to his legal representative for the 
 benefit of such dependents, or if he leaves no such 
 dependents, for the benefit of the persons to whom 
 the expenses of medical attendance and burial are 
 due." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 " 2-12. Basis of computation in case of death. In 
 case of death compensation shall be computed but 
 not distributed on the following basis: 
 
 " (1) Actual dependents. 
 
 " If orphan or orphans, a minimum of twenty-five 
 per centum of wages of deceased, with ten per centum 
 additional for each orphan in excess of two, with a 
 maximum of sixty per centum. 
 
 "If widow alone, twenty-five per centum of wages. 
 
 "If widow and one child, forty per centum of wages. 
 
 "If widow and two children, forty-five per centum 
 of wages. 
 
 "If widow and three children, fifty per centum 
 of wages. 
 
 "If widow and four children, fifty-five per centum 
 of wages. 
 
 "If widow and five children or more, sixty per 
 centum of wages. 
 
 "If widow and father or mother, fifty per centum 
 of wages. 
 
 "If grandparents, grandchildren, or minor, or
 
 COMPENSATION TO DEPENDENTS FOR DEATH 223 
 New Jersey 
 
 incapacitated brothers or sisters, twenty-five per 
 centum of wages. 
 
 "Distribution of compensation in case of death. 
 Compensation in case of death shall be computed 
 on the basis of the foregoing schedule, but shall be 
 distributed according to the laws of this State pro- 
 viding for the distribution of the personal property 
 of an intestate decedent, unless decedent has in fact 
 left a will. 
 
 " (2) No dependents. 
 
 " Sickness and burial. Expense of last sickness 
 and burial not exceeding two hundred dollars. 
 
 "Orphans and minors. In computing compensation 
 to orphans or other children, only those under six- 
 teen years of age shall be included, and only during 
 the period in which they are under that age, at 
 which time payment on account of such child shall 
 cease. 
 
 "Weekly compensation. Proviso. Duration. The 
 compensation in case of death shall be subject to a 
 maximum compensation of ten dollars per week and 
 a minimum of 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 three hundred 
 weeks. 
 
 "Aliens excepted. Compensation under this sched- 
 ule shall not apply to alien dependents not residents 
 of the United States." 
 
 As to whom payments will be ordered by the court 
 to be made in case of dispute, see II, paragraph 19, 
 of Act, which will be found in Chapter XXIV, post, 
 page 428.
 
 224 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 28. Injuries resulting in death compensation. 
 In case the injury causes death within the period of 
 two years the benefits shall be in the amounts and to 
 the persons following: 
 
 "1. If there be no dependents, the disbursements 
 from the insurance fund shall be limited to the ex- 
 pense provided for in sections 23 and 24. 1 
 
 "2. If there are wholly dependent persons at the 
 time of the death, the payment shall be sixty-six and 
 two-thirds per cent of the average weekly wage, 
 and to continue for the remainder of the period be- 
 tween the date of the death and six years after the 
 date of the injury, and not to amount to more than a 
 maximum of thirty-four hundred dollars, nor less 
 than a minimum of one thousand five hundred dollars. 
 
 "3. If there are partly dependent persons at the 
 time of the death, the payment shall be sixty-six 
 and two-thirds per cent of the average weekly wage 
 and to continue for all or such portion of the period 
 of six years after the date of the injury, as the board 
 in each case may determine, and not to amount to 
 more than a maximum of thirty-four hundred dol- 
 lars." 2 
 
 "31. Basis of compensation. The average weekly 
 wage of the injured person at the time of the injury 
 shall be taken as the basis upon which to compute 
 the benefits. 
 
 1 Section 23 provides for first-aid medical attention (see Chap- 
 ter VI, ante, page 200) and 24 to funeral expenses (see Chap- 
 ter VII, ante, page 204). 
 
 2 As to who are the dependents to whom benefits are to be paid, 
 see Chapter XVI, post, page 329.
 
 COMPENSATION TO DEPENDENTS FOR DEATH 225 
 Rhode Island 
 
 "32. Future earnings considered. If it is estab- 
 lished that the injured employe was of such age and 
 experience when injured as that under natural con- 
 ditions his wages would be expected to increase, 
 the fact may be considered in arriving at his average 
 weekly wage." l 
 
 RHODE ISLAND 
 
 (L. 1912, c. 888) 
 
 "Art. II, 6. Injuries resulting in death. If death 
 results from the injury, the employer shall pay the 
 dependents of the employe wholly dependent upon 
 his earnings for support at the time of his injury a 
 weekly payment equal to one-half his average weekly 
 wages, earnings or salary, but not more than ten 
 dollars nor less than four dollars a week, for a period 
 of three hundred weeks from the date of the injury: 
 Provided, however, that, if the dependent of the em- 
 ploye to whom the compensation shall be payable 
 upon his death is the widow of such employe, upon 
 her death the compensation thereafter payable under 
 this act shall be paid to the child or children of the 
 deceased employe, including adopted and stepchil- 
 dren, under the age of eighteen years, or over said age 
 but physically or mentally incapacitated from earning, 
 dependent upon the widow at the time of her death. 
 In case there is more than one child thus dependent, 
 the compensation shall be divided equally among 
 them. If the employe leaves dependents only partly 
 dependent upon his earnings for support at the time 
 
 1 This feature has been introduced in some of the compensation 
 acts of the various States. Undoubtedly it will be the source of 
 much controversy. An attempt to invoke this principle probably 
 will be made in practically all cases of employe's who are killed or 
 suffer permanent disability under the age of about thirty. 
 15
 
 226 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 of his injury, the employer shall pay such dependents 
 for a period of three hundred weeks from the date of 
 the injury a weekly compensation equal to the same 
 proportion of the weekly payments herein provided 
 for the benefit of persons wholly dependent as the 
 amount contributed annually by the employ6 to such 
 partial dependents bears to the annual earnings of 
 the deceased at the time of injury. When weekly 
 payments have been made to an injured employ 6 be- 
 fore his death, the compensation to dependents shall 
 begin from the date of the last of such payments, but 
 shall not continue more than three hundred weeks 
 from the date of the injury. Provided, however, that, 
 if the deceased leaves no dependents at the time of 
 the injury, the employer shall not be liable to pay 
 compensation under this act except as specifically 
 provided in section 9 of this Article." 
 
 For definition of average weekly wage see Chap- 
 ter IX, post, page 267. 
 
 "Art. II, 14. Deductions from compensation. No 
 savings or insurance of the injured employe, inde- 
 pendent of this act, shall be taken into consideration 
 in determining the compensation to be paid hereunder, 
 nor shall benefits derived from any other source than 
 the employer be considered in fixing the compensation 
 under this act. 
 
 "Art. II, 15. Compensation to whom paid. The 
 compensation payable under this act in case of the 
 death of the injured employe shall be paid to his legal 
 representatives; or, if he has no legal representative, 
 to his dependents entitled thereto, or, if he leaves no 
 such dependents, to the person to whom the expenses 
 for the burial and last sickness are due. If the pay- 
 ment is made to the legal representative of the de-
 
 COMPENSATION TO DEPENDENTS FOR DEATH 227 
 Washington 
 
 ceased employe, it shall be paid by him to the de- 
 pendents or other persons entitled thereto under this 
 act. All payments of compensation under this act 
 shall cease upon the death of the employe from a cause 
 other than or not induced by the injury for which he is 
 receiving compensation." 
 
 As to who are dependents, see Chapter XVI. 
 
 "Art. II, 16. Minors and mentally incompetent. 
 In case an injured employe is mentally incompetent, 
 or, where death results from the injury, in case any 
 of his dependents entitled to compensation hereunder 
 are mentally incompetent or minors at the time when 
 any right, privilege or election accrues to him or them 
 under this act, his conservator, guardian, or next 
 friend may, in his behalf, claim and exercise such 
 right, privilege, or election, and no limitation of time 
 in this act provided shall run so long as such incom- 
 petent or minor has no conservator or guardian." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 5. Schedule of awards. Each workman who 
 shall be injured whether upon the premises or at the 
 plant or, he being in the course of his employment, 
 away from the plant of his employer, or his family 
 or dependents in case of death of the workman, 
 shall receive out of the accident fund compensation 
 in accordance with the following schedule, and, ex- 
 cept as in this act otherwise provided, such payment 
 shall be in lieu of any and all rights of action what- 
 soever against any person whomsoever." 
 
 "COMPENSATION SCHEDULE 
 "(a) Where death results from the injury the ex-
 
 228 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 penses of burial shall be paid in all cases, not to exceed 
 $75.00 in any case, and 
 
 "(1) If the workman leaves a widow or invalid 
 widower, a monthly payment of $20.00 shall be made 
 throughout the life of the surviving spouse, to cease 
 at the end of the month in which remarriage shall 
 occur; and the surviving spouse shall also receive 
 $5.00 per month for each child of the deceased under 
 the age of sixteen years at time of the occurrence of the 
 injury until such minor child shall reach the age of 
 sixteen years, but the total monthly payment under 
 this paragraph (1) of subdivision (a) shall not exceed 
 $35.00. Upon remarriage of a widow she shall receive, 
 once and for all, a lump sum equal to twelve times her 
 monthly allowance, viz.: the sum of $240, but the 
 monthly payment for the child or children shall con- 
 tinue as before. 
 
 "(2) If the workman leaves no wife or husband, 
 but a child or children under the age of sixteen years, 
 a monthly payment of $10.00 shall be made to each 
 such child until such child shall reach the age of six- 
 teen years, but the total monthly payment shall not 
 exceed $35.00 and any deficit shall be deducted pro- 
 portionately among the beneficiaries. 
 
 " (3) If the workman leaves no widow, widower, or 
 child under the age of sixteen years, but leaves a de- 
 pendent or dependents, a monthly payment shall be 
 made to each dependent equal to fifty per cent of the 
 average monthly support actually received by such de- 
 pendent from the workman during the twelve months 
 next preceding the occurrence of the injury, but the 
 total payment to all dependents in any case shall not 
 exceed $20.00 per month. If any dependent is under 
 the age of sixteen years at the time of the occurrence 
 of the injury, the payment to such dependent shall
 
 COMPENSATION TO DEPENDENTS FOR DEATH 229 
 
 Wisconsin 
 
 cease when such dependent shall reach the age of 
 sixteen years. The payment to any dependent shall 
 cease if and when, under the same circumstances, the 
 necessity creating the dependency would have ceased 
 if the injury had not happened. 
 
 "If the workman is under the age of twenty-one 
 years and unmarried at the time of his death, the 
 parents or parent of the workman shall receive $20.00 
 per month for each month after his death until the 
 time at which he would have arrived at the age of 
 twenty-one years. 
 
 "(4) In the event a surviving spouse receiving 
 monthly payments shall die, leaving a child or children 
 under the age of sixteen years, the sum he or she shall 
 be receiving on account of such child or children shall 
 be thereafter, until such child shall arrive at the age of 
 sixteen years, paid to the child increased 100 per cent, 
 but the total to all children shall not exceed the sum of 
 thirty-five dollars per month." 
 
 For provisions in case of the death of a workman, 
 from causes other than the injury, during the period 
 of total disability, see 5 (c), in Chapter IX, post, 
 page 270. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-9 (3). The death of the injured employe" 
 shall not affect the obligation of the employer under 
 subsections 1 and 2 of this section, so far as his lia- 
 bility shall have become payable at the time of death; 
 but the death shall be deemed the termination of dis- 
 ability, and the employer shall thereupon be liable for 
 the following death benefits in lieu of any further dis- 
 ability indemnity:
 
 230 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 "(a) In case the deceased employe" leaves a person 
 or persons wholly 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 
 subsection 2 of this section, to make the total compen- 
 sation for the injury and death (exclusive of the bene- 
 fit provided for in subsection 1), equal to four times his 
 average annual earnings; the same to be payable, un- 
 less and until the board shall direct payment in gross, 
 in weekly installments corresponding in amount to 
 the weekly earnings of the employe". 
 
 "(6) In case the deceased employ 6 leaves no one 
 wholly dependent on him for support, but one or more 
 persons partially dependent therefor, the death bene- 
 fit shall be such percentage of four times such average 
 annual earnings of the employe as the average annual 
 amount devoted by the deceased to the support of 
 the person or persons so partially dependent on him 
 for support bears to such average annual earnings, the 
 same to be payable, unless and until the board shall 
 direct payment in gross, in weekly installments cor- 
 responding in amount to the weekly earnings of the 
 employe"; provided that the total compensation for 
 the injury and death (exclusive of the benefit provided 
 for in said subsection 1) shall not exceed four times 
 such average annual earnings. 
 
 "(c) Liability for the death benefits provided for in 
 subdivisions (a) and (6) respectively shall only exist 
 where the accident is the proximate cause of death; 
 provided that, if the accident proximately causes per- 
 manent total disability, and death ensues from some 
 other cause before disability indemnity ceases, the 
 death benefit shall be the same as though the accident 
 had caused death; and provided further that, if the
 
 COMPENSATION TO DEPENDENTS FOR DEATH 231 
 Wisconsin 
 
 accident proximately causes permanent partial dis- 
 ability and death ensues from some other cause before 
 disability indemnity ceases, liability shall exist for 
 such percentage of the death benefits provided for in 
 said subdivision (a) or (6) (as the case may be), as 
 shall fairly represent the proportionate extent of the 
 impairment of earning capacity caused by such per- 
 manent partial disability in the employment in which 
 the employ6 was working at the time of the accident." 
 
 The foregoing section has been the subject of much 
 discussion. The proviso "that if the accident proxi- 
 mately causes permanent total disability, and death 
 ensues from some other cause before disability indemnity 
 ceases, the death benefit shall be the same as though 
 the accident had caused death," and the subsequent 
 portion of the section allowing proportionate awards 
 when there is partial disability followed by death 
 from some other cause, leaves a broad ground for dis- 
 cussion and interpretation. The result of these pro- 
 visions is that as soon as a workman is permanently dis- 
 abled, whether totally or partially, the employer must, 
 if death follows before indemnity payments cease, 
 eventually pay the maximum amounts for such injury. 
 The employer immediately becomes the insurer of the 
 life of the injured employe, up to the time the indem- 
 nity payments cease. For if an uninjured employe" 
 should die from some other cause than an accident in- 
 cident to his employment the employer would of course 
 not be liable at all. But as soon as an employe is in- 
 jured then his life becomes of more value, from a com- 
 pensation standpoint, than one who is not injured. 
 
 "2394-10. 1. The weekly earnings referred to
 
 232 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 in section 2394-9 shall be one fifty-second of the 
 average annual earnings of the employe"; average an- 
 nual earnings shall not be taken at less than $375, nor 
 more than $750, and between said limits shall be 
 arrived at as follows: 
 
 " (a) If the injured employ 6 has worked in the em- 
 ployment in which he was working at the time of the 
 accident, whether for the same employer or not, during 
 substantially the whole of the year immediately pre- 
 ceding his injury, his average annual earnings shall 
 consist of three hundred times the average daily wage 
 or salary which he has earned in such employment 
 during the days when so employed. 
 
 "(6) If the injured employ 6 has not so worked in 
 such employment during substantially the whole of 
 such immediately preceding year, his average annual 
 earnings shall consist of three hundred times the aver- 
 age daily wage or salary which an employ6 of the same 
 class working substantially the whole of such imme- 
 diately preceding year in the same or a similar employ- 
 ment in the same or a neighboring place shall have 
 earned in such employment during the days when so 
 employed. 
 
 "(c) In cases where the foregoing methods of ar- 
 riving at the average annual earnings of the injured 
 employe* cannot reasonably and fairly be applied, such 
 annual earnings shall be taken at such sum as, having 
 regard to the previous earnings of the injured em- 
 ploye*, and of other employes of the same or most 
 similar class, working in the same or most similar 
 employment, in the same or a neighboring locality, 
 shall reasonably represent the annual earning capacity 
 of the injured employe" at the time of the accident in 
 the employment in which he was working at such time. 
 
 " (d) The fact that an employe has suffered a pre-
 
 COMPENSATION TO DEPENDENTS FOR DEATH 233 
 
 Wisconsin 
 
 vious disability, or received compensation therefor, 
 shall not preclude compensation for a later injury, or 
 for death, but in determining compensation for the 
 later injury, or death, his average annual earnings 
 shall be such sum as will reasonably represent his 
 annual earning capacity at the time of the later in- 
 jury, in the employment in which he was working at 
 such time, and shall be arrived at according to, and 
 subject to the limitations of, the previous provisions 
 of this section. 
 
 "2. The weekly loss in wages referred to in sec- 
 tion 2394-9 shall consist of such percentage of the 
 average weekly earnings of the injured employe", com- 
 puted according to the provisions of this section, as 
 shall fairly represent the proportionate extent of the 
 impairment of his earning capacity in the employment 
 in which he was working at the time of the accident, 
 the same to be fixed as of the time of the accident, but 
 to be determined in view of the nature and extent of 
 the injury."
 
 CHAPTER IX 
 
 COMPENSATION FOR TOTAL OR PERMANENT 
 DISABILITY 
 
 Page 
 
 1. Classification of disability 234 
 
 2. Total incapacity to do regular work 235 
 
 3. Total incapacity; refusal of former employer to supply work 
 
 to injured employe" 235 
 
 4. Loss of one eye 236 
 
 5. Complete blindness caused to eye of which sight partially 
 
 destroyed 237 
 
 6. Removal of eye already blind 237 
 
 7. Refusal to undergo surgical operation 238 
 
 8. Dismissal for misconduct of workman suffering from par- 
 
 tial permanent disability 238 
 
 9. Nervousness causing incapacity to work 239 
 
 10. Average weekly wages 242 
 
 Page Page 
 
 CALIFORNIA 253 NEW HAMPSHIRE 264 
 
 ILLINOIS 256 NEW JERSEY 265 
 
 KANSAS 259 OHIO 265 
 
 MASSACHUSETTS 261 RHODE ISLAND 266 
 
 MICHIGAN 262 WASHINGTON 269 
 
 NEVADA 263 WISCONSIN 272 
 
 1. Classification of disability. 
 
 Disability, or incapacity, may be permanent total, 
 permanent partial, temporary total, or temporary 
 partial. Very few of the acts attempt to define the 
 degrees of incapacity or disability. In the Washington 
 statute permanent total disability is defined to mean 
 the loss of both legs or both arms, or one leg and one 
 
 234
 
 TOTAL OR PERMANENT DISABILITY 235 
 
 Total incapacity; refusal of work 
 
 arm, total loss of eyesight, paralysis or other condition 
 permanently incapacitating the workman from per- 
 forming any work at any gainful occupation. It is a 
 well-known fact that persons who lose the sight of 
 both eyes not infrequently are able to earn considerable 
 sums in spite of this distressful calamity. The same 
 is true also as to those who have lost one arm and one 
 leg. Some of the statutes provide for payments of 
 specific sums for the loss of a member. Others leave 
 the question of compensation to depend entirely upon 
 the degree of disability or incapacity in any particular 
 case. The decisions cited hereafter deal with the ques- 
 tion generally and will doubtless be of material assist- 
 ance in determining the meaning of the varying pro- 
 visions of the several statutes. 
 
 2. Total incapacity to do regular work. 
 
 The claim of a seaman for compensation was re- 
 ferred to a medical referee for report. He certified 
 that the man was fit for light work if he wore a truss, 
 but not fit for work as a seaman, or for lifting. On this 
 certificate the County Court judge awarded compensa- 
 tion on the basis of total incapacity, and this decision 
 was affirmed by the Court of Appeal. Hendricksen v. 
 Owners of Steamship "Swanhilda" (1911), 4 B. W. C. 
 C. 233. 
 
 3. Total incapacity; refusal of former employers to 
 
 supply work to injured employe. 
 
 A workman with an injury to his knee recovered 
 
 sufficiently to be able to resume work, but his knee was 
 
 liable to break down at any time, and did in fact break 
 
 down. After a considerable time, during which he did
 
 236 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Loss of eye 
 
 not receive compensation, he took proceedings, and 
 the County Court judge, on the assumption that his 
 former employers were going to find him work, awarded 
 one penny per week. The former employers refused to 
 find him work and he was unable to obtain any from 
 anyone else owing to his having had an accident, and 
 to the chance of his breaking down. It was held that 
 he was entitled to full compensation. Thomas v. Fair- 
 bairn, Lawson & Co. (1911), 4 B. W. C. C. 195. 
 
 4. Loss of one eye. 
 
 The employer of a workman who had lost an eye, and 
 who had been in receipt, first of full, and subsequently 
 of partial compensation, having proposed to terminate 
 the weekly payments, a mutual submission was made 
 to a medical referee under Schedule I (15). The 
 medical referee having reported that the workman was 
 "as fit as any other one-eyed man" to resume work 
 underground, his employers applied to end the com- 
 pensation as from the date of the medical referee's 
 report. It was held that the miner should be permitted 
 to present proof showing that his wage-earning capacity 
 was not as great in his present condition as it would 
 have been if he had the use of both eyes. Arnott v. Fife 
 Coal Co. (1911), 48 Scotch L. R. 828; 4 B. W. C. C. 361. 
 
 A miner lost one eye by an accident. The medical 
 referee to whom the matter had been referred, reported 
 that he was fit for work. The employer thereupon 
 made application to have the compensation ended or 
 diminished. At the hearing the workman maintained 
 that since the date of the referee's examination he had 
 lost the use of his other eye owing to the accident, and 
 that he was unfit for his work. The arbitrator found
 
 TOTAL OR PERMANENT DISABILITY 237 
 
 Removal of eye already blind 
 
 that the miner was totally incapacitated but that it 
 was not proved that his blindness in the second eye 
 was due to the effects of the accident, and held that the 
 onus of proving that the supervening incapacity was 
 due to the accident lay upon the miner. The arbitrator 
 diminished the payments. It was held that the onus 
 was upon the miner and had not been discharged. 
 M'Ghee v. Summerlee Iron Co. (1911), 48 Scotch L. R. 
 807 ; 4 B. W. C. C. 424. 
 
 Where a miner in the course of his employment re- 
 ceived an injury which made his right eye almost use- 
 less and his left eye was already of little use by reason 
 of a disease common to miners it was held that he was 
 entitled to compensation. Lee v. William Baird & Co. 
 (1908), 45 Scotch L. R. 717; 1 B. W. C. C. 34. 
 
 5. Complete blindness caused to eye of which sight 
 
 partially destroyed. 
 
 A workman had received an injury to his eye ten 
 years before, so that sight was partially destroyed, but 
 he had some use of his eye. While in this condition he 
 was struck in the eye by a horse's tail and inflammation 
 set in. The eye was removed in the hospital. Com- 
 pensation was awarded on the ground that incapacity 
 for work was caused by the second injury. Martin v. 
 Barnett (1910), 3 B. W. C. C. 146. 
 
 6. Removal of eye already blind. 
 
 As a result of an accident years ago a workman was 
 blind in one eye, but the infirmity was unknown to his 
 employer and he was fully able to work. As a result of 
 a new accident the blind eye had to be removed and the 
 workman could no longer conceal his infirmity. On
 
 238 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Dismissal for misconduct 
 
 recovering from the effects of the operation he was 
 entirely unable, owing to the deformity which was now 
 obvious, to obtain work either from his old employer or 
 from anyone else. He claimed that the accident had 
 thus, in effect, incapacitated him for work. The County 
 Court judge held that any incapacity was due to the 
 accident which had blinded the eye years ago and de- 
 cided that the workman was not entitled to com- 
 pensation. This decision was affirmed by the Court 
 of Appeal. Ball v. William Hunt & Sons (1911), 104 
 L. T. 327; 4 B. W. C. C. 225. This case was reversed 
 in the House of Lords, but is not yet reported. It was 
 remanded to the County Court to determine the disa- 
 bility. 
 
 7. Refusal to undergo surgical operation. 1 
 
 Incapacity may none the less result from an injury, 
 should the workman refuse to undergo a surgical opera- 
 tion, which, although attended with risk, would prob- 
 ably be successful. Rothwell v. Davies (1903), 5 W. C. 
 C. 141. 
 
 8. Dismissal for misconduct of workman suffering 
 
 from partial permanent disability. 
 By an accident a workman lost the use of his left eye. 
 His employers, under a registered agreement, made him 
 a weekly payment during incapacity. He resumed 
 work at his former rate of wages, but was subsequently 
 dismissed for alleged misconduct. On application by 
 the employers to review the agreement, the County 
 Court judge reduced the weekly payments to one 
 
 1 See Chapter II, especially the subdivision "Arising out of and 
 in the Course of the Employment."
 
 TOTAL OR PERMANENT DISABILITY 239 
 
 Nervousness causing incapacity to work 
 
 penny, on the ground that the workman had brought 
 about his own dismissal. On appeal to the Court of 
 Appeal it was held, that although, when a workman 
 employed at an adequate rate of wages, vacates his 
 position by reason of his own misconduct, he is not 
 entitled at once to call upon his employers for com- 
 pensation, yet one act of misconduct does not neces- 
 sarily deprive him forever of the right to compensation. 
 W. White and Sons v. Harris (1910), 4 B. W. C. C. 39. 
 A workman who was partially incapacitated by an 
 accident which caused an injury of a permanent nature 
 was employed in another capacity where his wages were 
 higher than they had been before the accident. From 
 this employment he was dismissed by reason of his own 
 misconduct. On proceedings for compensation under 
 the Act it was held that the workman's incapacity was 
 due to his own misconduct and he was not entitled to a 
 substantial award. Upon the consent of the employer 
 an award was made of one penny a week for the purpose 
 of allowing the proceedings to stand without being en- 
 tirely terminated. Hill v. Ocean Coal Co. (1909), 3 B. 
 W. C. C. 29. 
 
 9. Nervousness causing incapacity to work. 1 
 
 Where a personal injury is caused to a workman by 
 accident, his right to claim compensation continues so 
 long as the nervous effects remain, if they produce 
 total or partial incapacity for work. Eaves v. Blaen- 
 clydach Colliery Co. (1909), 100 L. T. 747; 2 B. W. C. C. 
 329. 
 
 1 See Chapter II, especially the subdivisions "What is an Acci- 
 dent," especially pp. 62 et seq., and "Arising out of and in the 
 Course of the Employment."
 
 240 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nervousness causing incapacity to work 
 
 A relief stamper crushed her finger, and after a 
 period of time had physically recovered from her injury, 
 but dreaded to return to her old work for fear she 
 should again injure herself. It was held that the total 
 incapacity for work had ceased and an award of Id. 
 a week was all she was entitled to have. Pimms v. 
 Pearson (1909), 2 B. W. C. C. 489. 
 
 Although nervousness may be the result of an acci- 
 dent if it is such as an average reasonable man could 
 overcome it is not sufficient ground for compensation. 
 Turner v. Brooks & Doxey (1909), 3 B. W. C. C. 22. 
 In the last-mentioned case the workman had suffered 
 an injury of a not very serious nature. He returned for 
 a short time and then went to a convalescent home and 
 after that returned to work and continued in it for a 
 period of eighteen months. Then he complained that 
 because of nervousness due to the accident he was 
 unable to work. The County Court judge denied 
 compensation and this decision was affirmed by the 
 Court of Appeal. Among other things the County 
 Court judge said: "It is one of the most difficult tasks 
 we have in the working of the Act dealing fairly with 
 employers and men, to deal with cases which are par- 
 tially neurasthenic, and where the man does not desire 
 to go back to work for a variety of reasons which have 
 really nothing much to do with the original accident. 
 I make a finding that the man if he desires further rest 
 can have it at his own risk. I think that the applicant 
 is fit for his work, and that his refusal to continue 
 working is due to nervousness which an average rea- 
 sonable man would overcome. * * * I cannot help 
 saying that these neurasthenic claims are on the in- 
 crease. I know that the better class of working men
 
 TOTAL OR PERMANENT DISABILITY 241 
 
 Nervousness causing incapacity to work 
 
 will take the same view that I do of them. They are 
 not good for the general body of the working community 
 at all. It is not good that these neurasthenic cases 
 should be continually up before the country." The 
 Court of Appeal drew a distinction between this de- 
 cision and the case of Eaves v. Blaenclydach Colliery Co. 
 (1909), 2 K. B. 73; 2 B. W. C. C. 329. 
 
 An applicant for compensation was working in a 
 loft when a plank on the floor broke and he hurt his 
 leg. As he was unable to walk he was taken to the 
 hospital and was put under a high frequency electrical 
 treatment, which was so efficacious that in five minutes 
 the man seemed to be completely cured and was able 
 to walk about. He was discharged as cured, but when 
 he went back home he became as bad as ever. Again 
 he returned to the hospital and had the electrical treat- 
 ment administered, with the result that in a few minutes 
 again he was apparently as well as ever. Within a few 
 days after returning home he once more broke down 
 and became as bad as before. The man alleged that 
 he was unable to do any work. A physician giving 
 evidence for the employe said he did not think Osband 
 was malingering. He was suffering from traumatic 
 hysterical paraplegia, and was unfit to do any work. 
 Witness had told the man that a cure might be effected 
 if his house suddenly caught fire, because he would 
 then probably make a rush for the stairs and go down 
 all right. The County Court judge decided that the 
 man was suffering from traumatic hysterical para- 
 plegia, and that it was not an imaginary paralysis, 
 because he was not suffering from any paralysis at all. 
 That his condition was one of hysteria, and, in the 
 opinion of himself and the medical referee the man 
 16
 
 242 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Average weekly wages 
 
 could not exercise his will to commence work. He was, 
 therefore, entitled to compensation. Osband v. Tabor 
 (1912), "The Policy Holder," April 10, 1912, p. 296. 
 
 10. " Average weekly wages." 
 
 Some of the statutes contain minute directions as to 
 the manner of arriving at the "average" wages or 
 earnings, which are to form the basis of the compensa- 
 tion payments. Others contain no specifications what- 
 soever on this point. 
 
 In the Nevada statute there is a variance from the two 
 methods noted above. The act of the last-mentioned 
 State speaks of the workman's "average weekly earn- 
 ings in such employment during the previous twelve 
 months if he has been so long employed, but if not, 
 then for any less period during which he has been in 
 the employment of the same employer." 
 
 It is obvious that the different provisions of the va- 
 rious acts afford much opportunity for judicial construc- 
 tion and interpretation. The cases cited hereinafter 
 show the general rules of construction which have been 
 adopted by the courts under the British and Canadian 
 Compensation Acts. 
 
 Intermittent employment due to strikes and other causes. 
 Intervals from work not amounting to a break in the 
 employment should not be excluded in calculating 
 average weekly earnings. If a man has been employed 
 for twelve months, but has taken odd weeks off, the 
 total amount of his earnings should be divided by 
 fifty-two in order to calculate his average weekly 
 earnings. Keast v. The Barrow Haematite Steel Co. 
 (1899), 1 W. C. C. 99. If there has been a break in the 
 employment, for example, a strike, during the previous
 
 TOTAL OR PERMANENT DISABILITY 243 
 
 Average weekly wages 
 
 twelve months, the period of calculation in assessing 
 the average weekly earnings is the period of the new 
 employment. The test of whether there has been a 
 break in the employment is whether the relationship 
 of master and servant has been continuous or not; a 
 mere interval in the time the contract of service or work 
 is running is not sufficient. Jones v. Ocean Coal Co. 
 (1899), 80 L. T. 582; 1 W. C. C. 94. Where there is a 
 break in the employment, which amounts to a deter- 
 mination of the old employment, the period over which 
 the average weekly earnings should be assessed is that 
 immediately preceding the injury. Appleby v. The 
 Horseley Co. & Lovatt (1899), 80 L. T. 853; 1 W. C. C. 
 103. If a man is away from work for eleven weeks and 
 returns without any fresh engagement, having left his 
 tools on the job, there is evidence of a break hi the 
 employment. Hewlett v. Hepburn, 2 W. C. C. 123. 
 Where during the twelve months prior to the accident 
 the mills, in which the applicant worked, had been on 
 short time owing to slackness of trade, and the applicant 
 had not always worked a full week, it was held that 
 she was entitled to the average weekly earnings which 
 she had actually earned during the preceding twelve 
 months. Kelly v. York Street Flax Spinning Co. (1909), 
 43 Irish L. T. J. 81; 2 B. W. C. C. 493. In the last- 
 mentioned case it appeared that in previous years the 
 applicant had worked and earned more than she had 
 during the last twelve months, but the larger earnings 
 were not taken into consideration in fixing the com- 
 pensation. 
 
 In ascertaining the average weekly earnings of a work- 
 man, the recognized and known incidents of his em- 
 ployment must be taken into consideration. Therefore
 
 244 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Average weekly wages 
 
 where the injured workman was retained in the employ- 
 ment during the whole year, but owing to the fact that 
 the work was discontinuous, he could not have worked 
 for more than thirty-six weeks during the twelve months 
 preceding the accident, fourteen weeks having been 
 taken up by stoppages in the ordinary course of work, 
 and two weeks being recognized holidays, and he did 
 not in fact work for more than thirty-three weeks, it 
 was held that the basis of the compensation was 36/52 
 of his earnings during the thirty-three weeks he had 
 actually worked. (House of Lords), Anslow v. Cannock 
 Chase Colliery Co. (1909), 100 L. T. 786; 2 B. W. C. C. 
 365. As to the method of arriving at the average 
 weekly earnings of a workman, MOULTON, L. J., said 
 in the case of Perry v. Wright (1907), 98 L. T. 327; 1 
 B. W. C. C. 351, at page 356 of the last-mentioned 
 report: 
 
 "The object of the schedule is to arrive at a fair 
 estimate of what the workman was earning at the date 
 of the accident. But to regard this as rigidly deter- 
 mined by the rate at which he was earning remunera- 
 tion at the precise moment of the accident would be to 
 adopt a principle which would often lead to unfair 
 results. The remuneration which the workman was 
 earning at that particular moment might be abnor- 
 mally exaggerated or diminished by reason of temporary 
 and exceptional causes which would make it an in- 
 accurate measure of the workman's normal earnings. 
 The legislature, therefore, by the use of the word 
 'average' indicates that the rate of remuneration is to 
 be arrived at by taking into consideration the earnings 
 during an adequate length of time previous and up to 
 the time of the accident for the purpose of obtaining
 
 TOTAL OR PERMANENT DISABILITY 245 
 
 Average weekly wages 
 
 the average remuneration during that period, rightly 
 deeming that this will more fairly represent the rate 
 of remuneration which the workman was then receiv- 
 ing than would any method of estimating the rate of 
 remuneration solely based on the state of circumstances 
 prevailing at the precise moment of the accident." 
 The learned judge then discusses the provisions of the 
 British Compensation Act which are not entirely the 
 same as those found in the acts of the different States, 
 and lays down the principle that where a certain length 
 of time is taken in computing the average wage that 
 the weeks when there was an enforced idleness by reason 
 of holidays or breakage in machinery, ought to be 
 considered as part of the time employed even though 
 the workman did not receive anything for that time 
 and the average wage reduced accordingly. 
 
 An employe had worked for the same employer 
 more than twelve months. The total of his wages for 
 the twelve months before the accident were 83, 2s., 
 Id., but during the year there had been stoppages: 
 
 1st. In consequence of a canal having burst; 
 
 2d. During the wake week; 
 
 3d. By reason of accidents to machinery; 
 
 4th. On bank holidays. 
 
 The arbitrator divided the total sum earned by 
 fifty-two for the purpose of arriving at the average 
 weekly earnings of the workman in question. It was 
 held on appeal that this was error and that the same 
 should have been divided by the number of weeks or 
 parts of weeks actually worked. Bailey v. Kenworthy 
 (1906), 1 B. W. C. C. 371. 
 
 Adding compensation from all sources, including rent, 
 etc. A stoker on a merchant vessel was also a stoker
 
 246 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Average weekly wages 
 
 in the Naval Reserve and his position in the Naval 
 Reserve entitled him to draw 6 a year. He met with 
 an accident which disabled him from work, and it was 
 held that in estimating the average weekly earnings, 
 the sum which he received as stoker in the Naval Re- 
 serve must be added to the wages received by him as 
 a stoker in the merchant service. Brandy v. Owners of 
 S. S. "Raphael" (1910), 4 B. W. C. C. 6, aff'd by 
 House of Lords (1911), 4 B. W. C. C. 307. 
 
 The remuneration of a ship's steward who was 
 drowned was found by the County Court judge to be 
 232. He was entitled, in addition, to " extra wages," 
 which, however, only became payable on the happen- 
 ing of certain events, which had in fact happened, and 
 also to profits on the sale of whisky. The employers 
 contended that such extra payments should be taken 
 into consideration and that if they amounted to more 
 than 18 the total remuneration would exceed 250, 
 in which case the dependents would be excluded from 
 the benefits of the Act. The County Court judge 
 declined to take such sums into consideration and 
 awarded compensation. It was held on appeal to the 
 Court of Appeal of England that such extra payments 
 must be taken into consideration and that the case 
 must go back to the County Court judge to ascertain, 
 the best way he could, their value. Skailes v. Blue 
 Anchor Line (1910), 4 B. W. C. C. 16. 
 
 In estimating the compensation to which the de- 
 pendents of a workman killed by accident are entitled 
 when such workman has worked continuously for three 
 years for the same employer, no account can be taken 
 of the wages earned by him under concurrent con- 
 tracts with other employers. Buckley v. London &
 
 OTAL OR PERMANENT DISABILITY 247 
 
 Average weekly wages 
 
 India Docks (1909), 127 L. T. J. 521; 2 B. W. C. C. 
 327. 
 
 The value of clothing received as part of the emolu- 
 ments of service is part of the workman's (railway 
 guard) earnings. Great Northern Ry. Co. v. Dawson 
 (1905), 92 L. T. 145; 7 W. C. C. 114. Where a seaman 
 in claiming compensation added the amount of his 
 wages to the amount it would cost him for food and 
 lodging, and his employers contended that the food 
 did actually cost considerably less than the amount 
 claimed by the seaman, it was held in upholding an 
 award of the County Court judge that the proper 
 amount in this case was the wages plus the actual 
 cost to the employer of the food and lodging. It was 
 stated further that the cost of food and lodging to the 
 employer is not in every case the test of the value of 
 the same to the workman, where compensation is 
 claimed. Rosenquist v. Bouiring & Co. (1908), 98 L. 
 T. 773; 1 B. W. C. C. 395. Where a seaman receives 
 wages and food as part of his remuneration, the test 
 in ascertaining the amount of his average wages is not 
 what he saved by receiving the food, but what was the 
 actual worth to him of the reasonable food supplied 
 by the employers. Dothie v. MacAndrew & Co. (1908), 
 98 L. T. 495; 1 B. W. C. C. 308. Deductions from 
 wages for articles supplied which are part of the nec- 
 essary equipment of a workman from part of his earn- 
 ings. Abram Coal Co. v. Southern (1903), 5 W. C. C. 
 125. Occasional and fixed allowances for board and 
 lodging, when away from home, are included in earn- 
 ings. Sharpe v. Midland Ry. Co. (1903), 88 L. T. 545; 
 
 5 W. C. C. 128, aff'd, Midland Ry. Co. v. Sharpe (1904), 
 
 6 W. C. C. 119. Deductions from wages for things
 
 248 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Average weekly wages 
 
 supplied to a workman necessary for the performance 
 of his work, for example, lamp oil supplied to a miner, 
 do not reduce the amount of his earnings. Houghton 
 v. Sutton Heath and Lea Green Collieries Co. (1900), 
 3 W. C. C. 173. 
 
 The rent of a cottage belonging to the employer 
 and occupied by the workman, may properly be de- 
 ducted from the amount of compensation awarded 
 under an agreement between the employer and em- 
 ploye*. Brown v. The South Eastern & Chatham Rail- 
 way Co.'s Managing Committee (1910), 3 B. W. C. C. 
 428. 
 
 Regular employment at a fixed wage on two fixed 
 nights in each week is continuous employment for the 
 purpose of determining the number of weeks for which 
 the weekly earnings are to be averaged. If, in addition 
 to such fixed wage, other wages are earned from the 
 same employer for irregular and uncertain employ- 
 ment, these wages are not to be taken into account in 
 calculating the average weekly earnings. Hathaway 
 v. Argus Printing Co. (1900), 3 W. C. C. 177. 
 
 An applicant was injured at a laundry where she 
 earned 7s. a week. She also received from another 
 person 3s. a week for teaching children to play the 
 piano at their own home, where she went for that pur- 
 pose every Saturday. The County Court judge found 
 that the applicant's arrangement for teaching the 
 piano was not a "contract of service," and that there- 
 fore the applicant had not entered into concurrent 
 contracts of service within the meaning of Schedule I 
 (2) (6), and he awarded the applicant compensation 
 on the basis of 7s. a week received for work at the 
 laundry. It was held on appeal that the question
 
 TOTAL OR PERMANENT DISABILITY 249 
 
 Average weekly wages 
 
 whether the applicant, in her arrangement for teaching 
 the piano, was a workman under a contract of service 
 was a question of fact. There is a dictum in the same 
 case that an usher in a private school, or a teacher, or 
 a nursery governess, would, under ordinary circum- 
 stances, be entitled to claim the benefit of the Act. 
 Simmon v. The Heath Laundry Co. (1910), 102 L. T. 
 210; 3 B. W. C. C. 200. 
 
 "Tips' 9 as part of earnings. In calculating a work- 
 man's average weekly earnings, where the evidence is 
 that he habitually received certain tips to the knowl- 
 edge of his employers it was held that the court was 
 entitled to take these tips into consideration, although 
 they were given for services outside his ordinary em- 
 ployment. Knott v. Tingle Jacobs & Co. Q910), 4 B. 
 W. C. C. 55. 
 
 A man in respect of whose death compensation was 
 claimed, had been employed as a waiter on a dining 
 car. In addition to his pay and meals he received from 
 the railway company gratuities or tips from passengers 
 averaging from 10s. to 12s. a week. It was held that 
 the tips were part of the earnings of the deceased. 
 Penn v. Spiers & Pond (1908), 1 B. W. C. C. 401. 
 
 Absence of agreement as to rate of wages. Where no 
 rate of wages has been expressly stipulated for and no 
 payment made, an agreement may be implied for the 
 usual rate of wages for that particular class of work, in 
 that locality at that time. Jones v. Walker (1899), 1 
 W. C. C. 142. 
 
 Employment for less than a week. Where a workman 
 has worked less than one week he is only entitled to a 
 moiety of what he has actually earned. Peers v. Astley 
 and Tyldesley Collieries Co. (1901), 3 W. C. C. 185.
 
 250 BRADBURY'S WORKMEN'S COMPENSATION LA-W 
 
 Average weekly wages 
 
 Where a workman has worked for less than one 
 week he is entitled to a moiety of what he would have 
 earned if he had continued to work for the whole week. 
 Greaves v. Mulliners (1901), 3 W. C. C. 189. Where a 
 man worked eleven hours one day at the rate of 6d 
 per hour, and then was injured it was held that the 
 basis of compensation was the actual amount earned 
 and he was awarded one-half of 5s. 6d, or 2s. 9d 
 per week. Case v. Colonial Wharves (1905), 8 W. C. C. 
 114. 
 
 Actual earnings not "usual" wages paid in that em- 
 ployment. The weekly earnings of an injured workman 
 are what he has earned in that employment and not 
 the ordinary standard weekly wage earned by others 
 engaged in a similar occupation. Bartlett v. Tutton & 
 Sons (1901), 85 L. T. 531; 4 W. C. C. 133. An ar- 
 bitrator found that casual shipwrights (though the 
 standard union rate of wages for both permanent and 
 casual shipwrights is the same per day), are not in the 
 same grade as regular shipwrights, and that the aver- 
 age earnings of the former are much less than the latter. 
 He further found that the weekly earnings of a casual 
 shipwright at the place in question, had for the past 
 twelve months, averaged 30s. and gave compensation 
 to the dependents of a casual shipwright on this basis. 
 This ruling was sustained on appeal. Cain v. Leyland 
 & Co. (1906), 1 B. W. C. C. 368. Where a workman 
 was paid by the hour and earned 1, 18s. Qd. from 
 December 13 to December 20, and 1, 4s. 6d. from 
 December 20 to December 27 (Christmas week) it was 
 held that the average of the two weeks must be taken 
 in arriving at the basis of compensation. Fairdoth v. 
 Waring & Gillow (1906), 8 W. C. C. 99.
 
 TOTAL OR PERMANENT DISABILITY 251 
 
 Average weekly wages 
 
 Change in rate of wages during year. The period of 
 employment for assessing average weekly earnings is 
 not affected by a change in the character of the em- 
 ployment and a consequent change in the rate of wages. 
 When during employment for twelve months there 
 has been a change in the rate of wages, the average 
 must be taken on the earnings for the whole twelve 
 months, and not on the earnings at the time of the 
 accident. Price v. Marsden & Sons (1899), 80 L. T. 15; 
 1 W. C. C. 108. 
 
 The word "average" in the expression " average 
 weekly earnings" is only applicable where the weekly 
 earnings differ in amount. Lysons v. Andrew Knowles 
 & Sons; Stuart v. Nixon & Bruce (1901), 3 W. C. C. 1. 
 Fluctuations in the value of labor should be taken into 
 consideration in determining the amount of compen- 
 sation. James v. Ocean Coal Co. (1904), 6 W. C. C. 128. 
 
 Basis of compensation when workman employed in 
 different grades. A workman was employed by the 
 same employer for some time as a boilermaker and for 
 some time as a laborer, and he met with an accident 
 when employed as a laborer. The arbitrator, in cal- 
 culating his average weekly earnings took into account 
 the amount which the workman had earned as a boiler- 
 maker and awarded him compensation on the average 
 wage thus ascertained. It was held that the compensa- 
 tion must be based on the wages the workman was 
 earning in the grade of employment in which he met 
 with the accident and that it was error for the ar- 
 bitrator to reckon the man's wages as a boilermaker. 
 Babcock & Wilcox v. Young (1911), 48 Scotch L. R. 
 298; 4 B. W. C. C. 367. Same principle, Perry v. 
 Wright (1908), 98 L. T. 327; 1 B. W. C. C. 351. In the
 
 252 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Average weekly wages 
 
 last-mentioned case the principle was established 
 where a man changes from one grade of work to another 
 that "any step up or step down from one grade to 
 another is to be regarded as commencing a fresh em- 
 ployment," in computing the wages upon which com- 
 pensation is to be based. 
 
 An arbitrator found that no definite grades existed 
 among casual dock laborers, but that the men formed 
 themselves into grades of good and bad workmen, the 
 good earning about 30s. a week and the bad about 
 15s. a week, and that the workman whose compensa- 
 tion was in question belonged to the latter class. On 
 appeal it was held that this was a misdirection as to 
 the meaning of the word " grade." It was held that the 
 word does not involve or depend upon individual 
 characteristics, and that good and bad workmen are 
 not two grades. The case was remitted to an arbitrator 
 to determine whether casual dock laborers form a dis- 
 tinct grade in the hierarchy of labor, and if so what are 
 the average wages of the grade. Perry v. Wright; Cain 
 v. Leyland & Co.; Bailey v. Kenworthy; Gough v. Craw- 
 shay Brothers (1907), 98 L. T. 327; 1 B. W. C. C. 351. 
 
 A workman, after injury for which he was paid com- 
 pensation, resumed work in a different department, at 
 a lower wage. He was killed in this latter employment, 
 and the compensation was assessed on the wages of 
 the employment in which he was engaged when he was 
 killed. The Court of Appeal held that the question was 
 one of fact for the County Court judge, and as there 
 was evidence to support it, the court could not inter- 
 fere with the decision. The decision was made on the 
 ground that there had been a break in the continuity 
 of the employment of the workman and compensation
 
 TOTAL OR PERMANENT DISABILITY 253 
 
 California 
 
 was therefore assessed upon the basis of the earnings of 
 the man in the second employment. Williams v. The 
 Wynnstay Collieries (1910), 3 B. W. C. C. 473. 
 
 In many of the statutes which follow the provisions 
 for permanent and temporary disability have been so 
 intermingled that it has not always been possible to 
 separate them. They are shown as cross references. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "8 (2). If the accident causes disability, an in- 
 demnity which shall be payable as wages on the eighth 
 day after the injured employe leaves work as the re- 
 sult of the injury, and weekly thereafter, which weekly 
 indemnity shall be as follows: 
 
 "(a) If the accident causes total disability, sixty- 
 five per cent of the average weekly earnings during 
 the period of such total disability; provided, that if 
 the disability is such as not only to render the injured 
 employe entirely incapable of work, but also so help- 
 less as to require the assistance of a nurse, the weekly 
 indemnity during the period of such assistance shall 
 be increased to one hundred per cent of the average 
 weekly earnings. 
 
 * * * * * * * * i 
 
 " (c) If the disability caused by the accident is at 
 times total and at times partial, the weekly indemnity 
 during the periods of each such total or partial dis- 
 ability shall be in accordance with said subsections 
 (a) and (6) respectively. 
 
 "(d) Said subsections (a), (6) and (c) shall be sub- 
 ject to the following limitations : 
 
 i See Chapter X, post, page 281, for 8 (2) (6).
 
 254 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 "Aggregate disability indemnity for a single injury 
 shall not exceed three times the average annual earn- 
 ings of the employe. 
 
 "If the period of disability does not last more than 
 one week from the day the employe" leaves work as 
 the result of the accident no indemnity whatever shall 
 be recoverable. 
 
 "If the period of disability lasts more than one 
 week from the day the employe leaves work as the 
 result of the accident, no indemnity shall be recover- 
 able for the first week of the period of such disability. 
 
 "The aggregate disability period shall not, in any 
 event, extend beyond fifteen years from the date of 
 the accident." * 
 
 "9 (1). The weekly earnings referred to in sec- 
 tion (8) shall be one fifty-second of the average annual 
 earnings of the employe"; average annual earnings shall 
 not be taken at less than $333.33, nor more than 
 $1,666.66, and between said limits shall be arrived at 
 as follows: 
 
 "(a) If the injured employe" has worked in such 
 employment, whether for the same employer or not, 
 during substantially the whole of the year immediately 
 preceding his injury, his average annual earnings shall 
 consist of three hundred times the average daily wage 
 or salary which he has earned as such employe" during 
 the days when so employed. 
 
 " (&) If the injured employe" has not so worked in 
 such employment during substantially the whole of 
 such immediately preceding year, his average annual 
 earnings shall consist of three hundred times the aver- 
 age daily wage or salary which an employe of the same 
 class working substantially the whole of such imme- 
 
 1 For limitation on disability benefit in case of death, see Chap- 
 ter VIII, ante, page 212.
 
 TOTAL OR PERMANENT DISABILITY 255 
 
 California 
 
 diately preceding year in the same or a similar employ- 
 ment in the same or a neighboring place shall have 
 earned during the days when so employed. 
 
 " (c) In cases where the foregoing methods of arriv- 
 ing at the average annual earnings of the injured em- 
 ploye cannot reasonably and fairly be applied, such 
 annual earnings shall be taken at such sum as having 
 regard to the previous earnings of the injured em- 
 ploye, and of other employe's of the same or most 
 similar class, working in the same or most similar 
 employment in the same or neighboring locality, shall 
 reasonably represent the average earning capacity of 
 the injured employe* at the time of the injury in the 
 employment in which he was working at such time. 
 
 " (d) The fact that an employ 6 has suffered a pre- 
 vious disability, or received compensation therefor, 
 shall not preclude him from compensation for a later 
 injury, or for death resulting therefrom, but in deter- 
 mining compensation for the later injury, or death 
 resulting therefrom, his average annual earnings shall 
 be such sum as will reasonably represent his annual 
 earning capacity at the time of the later injury, and 
 shall be arrived at according to the previous provi- 
 sions of this section. 
 
 "(2) The weekly loss in wages referred to in sec- 
 tion 8, shall consist of the difference between the 
 average weekly earnings of the injured employe", com- 
 puted according to the provisions of this section, and 
 the weekly amount which the injured employe", in the 
 exercise of reasonable diligence, will probably be able 
 to earn, the same to be fixed as of the time of the 
 accident, but to be determined in view of the nature 
 and extent of the injury."
 
 256 BRADBUKY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 5. The amount of compensation which the em- 
 ployer who accepts the provisions of this Act shall 
 provide and pay for injury to the employ 6 resulting in 
 disability shall be: 
 
 (Subdivision a provides for medical attention. See 
 Chapter VI, ante, page 197.) 
 
 "6. If the period of disability lasts for more than 
 six working days, and such fact is determined by the 
 physician or physicians, as provided in Section 9, 
 compensation equal to one-half of the earnings, but 
 not less than five dollars nor more than twelve dollars 
 per week, beginning on the eighth day of disability, 
 and as long as the disability lasts, or until the amount 
 of compensation paid equals the amount payable as a 
 death benefit. 
 
 "c. If any employe", by reason of any accident aris- 
 ing out of and in the course of his employment, receive 
 any serious and permanent disfigurement to the hands 
 or face, but which injury does not actually incapacitate 
 the employe from pursuing his usual or customary 
 employment so that it is possible to measure com- 
 pensation in accordance with the scale of compensa- 
 tion and the methods of computing the same herein 
 provided, such employe shall have the right to resort 
 to the arbitration provisions of this Act for the pur- 
 pose of determining a reasonable amount of compen- 
 sation to be paid to such employe", but not to exceed 
 one-quarter (J4) of the amount of his compensation in 
 case of death. 
 
 "d. If after the injury has been received it shall
 
 TOTAL OR PERMANENT DISABILITY 257 
 
 Illinois 
 
 appear upon medical examination as provided for 
 in Section 9, that the employe" has been partially, 
 though permanently incapacitated from pursuing his 
 usual and customary line of employment, he shall 
 receive compensation equal to one-half of the differ- 
 ence between the average amount which he earned 
 before the accident, and the average amount which 
 he is earning, or is able to earn in some suitable em- 
 ployment or business after the accident, if such em- 
 ployment is secured. 
 
 "e. In the case of complete disability which renders 
 the employe wholly and permanently incapable of 
 work, compensation for the first eight years after the 
 day the injury was received, equal to fifty per cent of 
 his earnings, but not less than five dollars nor more 
 than twelve dollars per week. If complete disability 
 continues after the payment of a sum equal to the 
 amount of the death benefit or after the expiration of 
 the eight years, then a compensation during life, equal 
 to eight per cent of the death benefit which would have 
 been payable had the accident resulted in death. Such 
 compensation shall not be less than ten dollars per 
 month and shall be payable monthly. 
 
 " (1) In case death occurs before the total of the 
 payments made equals the amount payable as a 
 death benefit, as provided in Section 4, Article a, then 
 in case the employe leaves any widow, child or children, 
 or parents, or other lineal heirs, they shall be paid the 
 difference between the compensation for death and the 
 sum of such payment, but in no case shall this sum 
 be less than five hundred dollars. 
 
 "(2) In cases of complete disability, after com- 
 pensation has been paid at the specified rate for a term 
 of at least six months, the employe shall have the 
 privilege of filing a petition in accordance with Arti- 
 17
 
 258 BRADBURY'S WORKMEN s COMPENSATION LAW 
 
 Illinois 
 
 cle d of Section 4 of this Act, asking for a lump sum 
 payment of the difference between the sum of the 
 payments received and the compensation to which 
 he was entitled when such permanent disability had 
 been definitely determined. For the purpose of this 
 section, blindness or the total and irrecoverable loss 
 of sight, the loss of both feet at or above the ankle, the 
 loss of both hands at or above the wrist, the loss of 
 one hand and one foot, an injury to the spine result- 
 ing in permanent paralysis of the legs or arms, and a 
 fracture of the skull resulting in incurable imbecility 
 or insanity, shall be considered complete and perma- 
 nent disability: Provided, these specific cases of com- 
 plete disability shall not, however, be construed as 
 excluding other cases. 
 
 "5, e (3). In fixing the amount of the disability 
 payments, regard shall be had to any payments, al- 
 lowance or benefit which the employe* may have re- 
 ceived from the employer during the period of his 
 incapacity, except the expenses of necessary medical 
 or surgical treatment. In no event, except in cases of 
 complete disability as defined above, shall any weekly 
 payment payable under the compensation plan in this 
 section provided exceed twelve dollars per week, or 
 extend over a period of more than eight years from 
 the date of the accident. In case an injured employe" 
 shall be incompetent at the time when any right or 
 privilege accrues to him under the provisions of this 
 Act, a conservator or guardian of the incompetent, 
 appointed pursuant to law, may on behalf of such 
 incompetent, claim and exercise any such right or 
 privilege with the same force and effect as if the em- 
 ploye" himself had been competent and had claimed 
 or exercised said right or privilege; and no limita- 
 tions of time by this Act provided, shall run so long
 
 TOTAL OR PERMANENT DISABILITY 259 
 
 Kansas 
 
 as said incompetent employe" had no conservator or 
 guardian." 
 
 "11. * * * any right to receive compensation 
 hereunder shall be extinguished by the death of the 
 person or persons entitled thereto, subject to the 
 provisions of this Act relative to compensation for 
 death received in the course of employment. * * *" 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "11 (6). Where total incapacity for work results 
 from injury, periodical payments during such incapac- 
 ity, commencing at the end of the second week, equal 
 to fifty per cent of his average weekly earnings com- 
 puted as provided in section 12 but in no case less than 
 six dollars per week or more than fifteen dollars per 
 week." 
 
 " 12. Rule for compensation. For the purposes of 
 the provisions of this act relating to 'earnings' and 
 'average earnings' of a workman, the following rules 
 shall be observed: (a) 'Average earnings' shall be 
 computed in such manner as is best calculated to give 
 the average rate per week at which the workman was 
 being remunerated for the 52 weeks prior to the acci- 
 dent. Provided, that where by reason of the shortness 
 of time during which the workman has been in the 
 employment of his employer, or the casual nature or 
 the terms of the employment, it is impracticable to 
 compute the rate of remuneration, regard shall be 
 had to the average weekly amount which, during the 
 twelve months previous to the accident, was being 
 earned by a person in the same grade employed at the 
 same work by the same employer, or, if there is no 
 person employed, by a person in the same grade em-
 
 260 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 ployed in the same class of employment and in the 
 same district. (6) Where the workman had entered 
 into concurrent contracts of service with two or more 
 employers under which he worked at one time for one 
 such employer and at another time for another such 
 employer, his 'earnings' and his 'average earnings' 
 shall be computed as if his earnings under all such 
 contracts were earnings in the employment of the em- 
 ployer for whom he was working at the time of the 
 accident, (c) Employment by the same employer 
 shall be taken to mean employment by the same em- 
 ployer in the grade in which the workman was em- 
 ployed at the time of the accident, uninterrupted by 
 his absence of work due to illness or any other un- 
 avoidable cause, (d) Where the employer has been 
 accustomed to pay to the workman a sum to cover 
 any special expenses entailed upon him by the nature 
 of his employment, the sum so paid shall not be 
 reckoned as part of the earnings, (e) In fixing the 
 amount of the payment, allowance shall be made for 
 any payment or benefit which the workman may 
 receive from the employer during his period of in- 
 capacity. (/) In the case of partial incapacity the 
 payments shall be computed to equal, as closely as 
 possible, fifty per cent of the difference between the 
 amount of the ' average earnings ' of the workman be- 
 fore the accident, to be computed as herein provided, 
 and the average amount which he is most probably 
 able to earn in some suitable employment or business 
 after the accident, subject, however, to the limitations 
 hereinbefore provided. 
 
 " 13. Payments to the injured workman. The pay- 
 ments shall be made at the same time, place, and in 
 the same manner as the wages of the workman were 
 payable at the time of the accident, but a judge of any
 
 TOTAL OR PERMANENT DISABILITY 261 
 
 Massachusetts 
 
 district court having jurisdiction upon application of 
 either party may modify such regulation in a particu- 
 lar case as to him may seem just." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 9. While the incapacity for work re- 
 sulting from the injury is total, the association shall 
 pay the injured employe a weekly compensation equal 
 to one-half his average weekly wages, but not more 
 than ten dollars nor less than four dollars a week; and 
 in no case shall the period covered by such compensa- 
 tion be greater than five hundred weeks, nor the 
 amount more than three thousand dollars." 
 
 "Part II, 11. In case of the following specified in- 
 juries the amounts hereinafter named shall be paid in 
 addition to all other compensations: (a) For the loss 
 by severance of both hands at or above the wrist, or 
 both feet at or above the ankle, or the loss of one hand 
 and one foot, or the reduction to one-tenth of normal 
 vision in both eyes with glasses, one-half of the average 
 weekly wages of the injured person, but not more 
 than ten dollars nor less than four dollars a week, for 
 a period of one hundred weeks. (6) For the loss by 
 severance of either hand at or above the wrist, or 
 either foot at or above the ankle, or the reduction to 
 one-tenth of normal vision in either eye with glasses, 
 one-half the average weekly wages of the injured per- 
 son, but not more than ten dollars nor less than four 
 dollars a week, for a period of fifty weeks, (c) For the 
 loss by severance at or above the second joint of two 
 or more fingers, including thumbs, or toes, one-half 
 the average weekly wages of the injured person, but 
 not more than ten dollars nor less than four dollars a
 
 262 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 week for a period of twenty-five weeks, (d) For the 
 loss by severance of at least one phalange of a finger, 
 thumb, or toe, one-half the average weekly wages of 
 the injured person, but not more than ten dollars nor 
 less than four dollars a week, for a period of twelve 
 weeks." (As am'd by L. 1912, c. 571.) 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part II, 1. If an employe who has not given 
 notice of his election not to be subject to the pro- 
 visions of this act, as provided in part one, sec- 
 tion eight, or who has given such notice and has 
 waived the same as hereinbefore provided, receives a 
 personal injury arising out of and in the course of his 
 employment by an employer who is at the time of 
 such injury subject to the provisions of this act, he 
 shall be paid compensation in the manner and to the 
 extent hereinafter provided, or in case of his death 
 resulting from such injuries such compensation shall 
 be paid to his dependents as hereinafter defined." 
 
 ******** 
 
 " 9. While the incapacity for work resulting from 
 the injury is total, the employer shall pay, or cause to 
 be paid as hereinafter provided, to the injured em- 
 ploye" a weekly compensation equal to one-half his 
 average weekly wages, but not more than ten dollars 
 nor less than four dollars a week ; and in no case shall 
 the period covered by such compensation be greater 
 than five hundred weeks, nor shall the total amount 
 of all compensation exceed four thousand dollars." 
 
 For loss of hand, foot, arm, leg and other members, 
 see Part II, 10, Chapter X, post, page 283.
 
 TOTAL OR PERMANENT DISABILITY 263 
 
 Nevada 
 
 For manner of computing average weekly wages, see 
 Part II, 11, Chapter X, post, page 285. 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 " 6. The amount of compensation in case of total 
 or partial disability resulting from injury shall be: 
 
 "(a) A weekly payment during the disability, be- 
 ginning within ten days after the injury, 60 per cent 
 of his average weekly earnings in such employment 
 during the previous twelve months if he has been so 
 long employed, but if not, then for any less period 
 during which he has been in the employment of the 
 same employer, so long as there is complete disability; 
 and that proportion of the said percentage which the 
 depleted earning capacity for that service bears to the 
 total disability when the injury is only partial, but in 
 no event shall the total of all payments under this act 
 exceed the sum of three thousand dollars. 
 
 " (6) In addition to the foregoing payments, if the 
 injured person lose both feet or both hands, or one 
 foot and one hand, or both eyes or one eye and one 
 foot or one hand, he shall receive, during a full period 
 of five years, 40 per cent of his average weekly earn- 
 ings, or if he lose one foot, one hand or one eye, the 
 additional compensation therefor shall be 15 per cent 
 of his average weekly earnings, the amount of such 
 earnings to be computed in the same manner as the 
 foregoing 60 per cent; provided, that in no case shall 
 all the payments received herein exceed in any month 
 the whole wages earned when the injury occurs, nor 
 shall the added percentages continue longer than to 
 make all payments aggregate three thousand dollars."
 
 264 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 " 6 (2). Where total or partial incapacity for work 
 at any gainful employment results to the workman 
 from the injury, a weekly payment commencing at the 
 end of the second week after the injury and continuing 
 during such incapacity, subject as herein provided, 
 not exceeding fifty per centum of his average weekly 
 earnings when at work on full time during the pre- 
 ceding year during which he shall have been in the 
 employment of the same employer, or if he shall have 
 been in the employment of the same employer for less 
 than a year, then a weekly payment of not exceeding 
 one-half the average weekly earnings on full time for 
 such less period. In fixing the amount of the weekly 
 payment, regard shall be had to the difference between 
 the amount of the average earnings of the workman 
 before the accident and the average amount he is able 
 to earn thereafter as wages in the same employment 
 or otherwise. In fixing the amount of the weekly 
 payment, regard shall be had to any payment, allow- 
 ance or benefit which the workman may have received 
 from the employer during the period of his incapacity, 
 and in the case of partial incapacity the weekly pay- 
 ment shall in no case exceed the difference between 
 the amount of the average weekly earnings of the 
 workman before the accident and the average weekly 
 amount which he is earning or is able to earn in the 
 same employment or otherwise, after the accident, 
 but shall amount to one-half of such difference. In 
 no event shall any compensation paid under this act 
 exceed the damage suffered, nor shall any weekly pay- 
 ment payable under this act in any event exceed ten 
 dollars a week or extend over more than three hundred
 
 TOTAL OR PERMANENT DISABILITY 265 
 
 Ohio 
 
 weeks from the date of the accident. Such payment 
 shall continue for such period of three hundred weeks 
 provided total or partial disability continue during 
 such period. No such payment shall be due or payable 
 for any time prior to the giving of the. notice required 
 by Sec. 5 of this act." 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 "II, (11) (6) Complete disability. Proviso. For 
 disability total in character and permanent in quality, 
 fifty per centum of the wages received at the time of 
 injury, subject to a maximum compensation of ten 
 dollars per week and a minimum of five dollars per 
 week; provided, that if at the time of injury the em- 
 ploye" receives wages of less than five dollars per week, 
 then he shall receive the full amount of wages per 
 week. This compensation shall be paid during the 
 period of such disability, not, however, beyond four 
 hundred weeks." 
 
 For provisions relating to permanent partial disa- 
 bility, by loss of member see Chapter X, post, page 288. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 ' 27. Total disability compensation. In case of 
 permanent total disability the award shall be 66 2-3% 
 of the average weekly wage, and shall continue until 
 the death of such person so totally disabled, but not 
 to exceed a maximum of twelve dollars per week, and 
 not less than a minimum of five dollars per week, if 
 the employe's wages were less than five dollars per 
 week, then he shall receive his full wages."
 
 266 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 '* 31. Basis of compensation. The average weekly 
 wage of the injured person at the time of the injury 
 shall be taken as the basis upon which to compute the 
 benefits. 
 
 "32. Future earnings considered. If it is estab- 
 lished that the injured employe" was of such age 
 and experience when injured as that under natural 
 conditions his wages would be expected to increase, 
 the fact may be considered in arriving at his average 
 weekly wage." l 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 10. Total incapacity. While the inca- 
 pacity for work resulting from the injury is total, the 
 employer shall pay the injured employ 6 a weekly 
 compensation equal to one-half his average weekly 
 wages, earnings or salary, but not more than ten dol- 
 lars nor less than four dollars a week; and in no case 
 shall the period covered by such compensation be 
 greater than five hundred weeks from the date of the 
 injury. In the following cases it shall, for the pur- 
 poses of this section, be conclusively presumed that 
 the injury resulted in permanent total disability, to 
 wit: The total and irrecoverable loss of sight in both 
 eyes, the loss of both feet at or above the ankle, the 
 loss of both hands at or above the wrist, the loss of 
 one hand and one foot, an injury to the spine result- 
 ing in permanent and complete paralysis of the legs 
 or arms, and an injury to the skull resulting in in- 
 curable imbecility or insanity." 
 
 "Art. II, 12. Specific injuries. In case of the 
 following specified injuries the amounts named in this 
 1 See note 1 on page 225, in Chapter VIII.
 
 TOTAL OR PERMANENT DISABILITY 267 
 
 Rhode Island 
 
 section shall be paid in addition to all other compensa- 
 tion provided for in this act: 
 
 " (a) For the loss by severance of both hands at or 
 above the wrist, or both feet at or above the ankle, or 
 the loss of one hand and one foot, or the entire and 
 irrecoverable loss of the sight of both eyes, one-half of 
 the average weekly wages, earnings or salary of the 
 injured person, but not more than ten dollars nor less 
 than four dollars a week, for a period of one hundred 
 weeks. 
 
 " (6) For the loss by severance of either hand at or 
 above the wrist, or either foot at or above the ankle, 
 or the entire and irrecoverable loss of the sight of 
 either eye, one-half the average weekly wages, earn- 
 ings or salary of the injured person, but not more 
 than ten dollars nor less than four dollars a week, for 
 a period of fifty weeks. 
 
 "(c) For the loss by severance at or above the 
 second joint of two or more fingers, including thumbs, 
 or toes, one-half the average weekly wages, earnings 
 or salary of the injured person but not more than ten 
 dollars nor less than four dollars a week, for a period 
 of twenty-five weeks. 
 
 "(d) For the loss by severance of at least one 
 phalange of a finger, thumb, or toe, one-half the 
 average weekly wages, earnings or salary of the in- 
 jured person, but not more than ten dollars nor less 
 than four dollars a week, for a period of twelve 
 weeks." 
 
 " 13. Average weekly wage defined. The 'average 
 weekly wages, earnings, or salary' of an injured em- 
 ploye" shall be computed as follows: 
 
 "(a) If the injured employe" has worked in the 
 same employment in which he was working at the 
 time of the accident, whether for the same employer
 
 268 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 or not, during substantially the whole of the year 
 immediately preceding his injury, his 'average weekly 
 wages' shall be three hundred times the average 
 daily wages, earnings or salary which he has earned 
 in such employment during the days when so em- 
 ployed and working the number of hours constituting 
 a full working day in such employment, divided by 
 fifty-two. But where the employe is employed con- 
 currently by two or more employers, for one of whom 
 he works at one time and for another of whom he 
 works at another time, his 'average weekly wages' 
 shall be computed as if the wages, earnings or salary 
 received by him from all such employers were wages, 
 earnings or salary earned in the employment of the 
 employer for whom he was working at the time of the 
 accident. 
 
 "(6) If the injured employe has not so worked in 
 such employment during substantially the whole of 
 such immediately preceding year, his ' average weekly 
 wages ' shall be three hundred times the average daily 
 wages, earnings, or salary which an employe" of the 
 same class working substantially the whole of such 
 immediately preceding year in the same or a similar 
 employment, in the same or a neighboring place, has 
 earned in such employment during the days when so 
 employed and working the number of hours con- 
 stituting a full working day in such employment 
 divided by fifty-two. 
 
 " (c) In cases where the foregoing methods of ar- 
 riving at the 'average weekly wages, earnings, or 
 salary' of the injured employe cannot reasonably 
 and fairly be applied, such 'average weekly wages' 
 shall be taken at such sum as, having regard to the 
 previous wages, earnings or salary of the injured em- 
 ploye", and other employes of the same or most similar
 
 TOTAL OR PERMANENT DISABILITY 269 
 
 Washington 
 
 class, working in the same or most similar employ- 
 ment in the same or a neighboring locality, shall 
 reasonably represent the weekly earning capacity of 
 the injured employe at the time of the accident in the 
 employment in which he was working at such time. 
 
 " (d) Where the employer has been accustomed to 
 pay to the employe a sum to cover any special ex- 
 pense incurred by said employe by the nature of his 
 employment, the sum so paid shall not be reckoned 
 as part of the employe's wages, earnings or salary. 
 
 "(e) The fact that an employe has suffered a 
 previous injury, or received compensation therefor, 
 shall not preclude compensation for a later injury or 
 for death; but in determining the compensation for 
 the later injury or death, his 'average weekly wages' 
 shall be such sum as will reasonably represent his 
 weekly earning capacity at the time of the later injury, 
 in the employment in which he was working at such 
 time, and shall be arrived at according to, and subject 
 to the limitations of the previous provisions of this 
 section." 
 
 No deductions are to be made from compensation 
 by reason of insurance or other benefits due to the 
 employe. Art. II, 14. See Chapter VIII, ante, p. 226. 
 
 Payments to minors and mental incompetents, see 
 Art. II, 16, Chapter VIII, ante, page 227. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 5. (6) Permanent total disability means the loss 
 of both legs or both arms, or one leg and one arm, 
 total loss of eyesight, paralysis or other condition 
 permanently incapacitating the workman from per- 
 forming any work at any gainful occupation.
 
 270 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 "When permanent total disability results from the 
 injury the workman shall receive monthly during the 
 period of such disability: 
 
 "(1) If unmarried at the time of the injury, the 
 sum of S20.00. 
 
 "(2) If the workman have a wife or invalid hus- 
 band, but no child under the age of sixteen years, the 
 sum of $25.00. If the husband is not an invalid, 
 ^ the monthly payment of $25.00 shall be reduced to 
 ' $15.00. 
 
 " (3) If the workman have a wife or husband and a 
 child or children under the age of sixteen years, or, 
 being a widow or widower, have any such child or 
 children, the monthly payment provided in the pre- 
 ceding paragraph shall be increased by five dollars for 
 each such child until such child shall arrive at the age 
 of sixteen years, but the total monthly payment shall 
 not exceed thirty-five dollars. 
 
 "(c) If the injured workman die during the period 
 of total disability, whatever the cause of death, leaving 
 a widow, invalid widower or child under the age of 
 sixteen years, the surviving widow or invalid widower 
 shall receive twenty dollars per month until death or 
 remarriage, to be increased five dollars per month for 
 each child under the age of sixteen years until such 
 child shall arrive at the age of sixteen years; but if 
 such child is or shall be without father or mother, such 
 child shall receive ten dollars per month until arriving 
 at the age of sixteen years. The total combined 
 monthly payment under this paragraph shall in no 
 case exceed thirty-five dollars. Upon remarriage the 
 payments on account of a child or children shall con- 
 tinue as before to the child or children. 
 
 "(d) When the total disability is only temporary, 
 the schedule of payment contained in paragraphs (1),
 
 TOTAL OR PERMANENT DISABILITY 271 
 
 Washington 
 
 (2) and (3) of the foregoing subdivision (d) shall apply 
 so long as the total disability shall continue, increased 
 50 per cent for the first six months of such continu- 
 ance, but in no case shall the increase operate to make 
 the monthly payment exceed sixty per cent of the 
 monthly wage (the daily wage multiplied by twenty- 
 six) the workman was receiving at the time of his in- 
 jury. As soon as recovery is so complete that the 
 present earning power of the workman, at any kind of 
 work, is restored to that existing at the time of the 
 occurrence of the injury the payments shall cease. 
 If and so long as the present earnings power is only 
 partially restored the payments shall continue in the 
 proportion which the new earning power shall bear to 
 the old. No compensation shall be payable out of the 
 accident fund unless the loss of earning power shall 
 
 exceed five per cent. 
 
 ******** 
 
 " (/) Permanent partial disability means the loss of 
 either one foot, one leg, one hand, one arm, one eye, 
 one or more fingers, one or more toes, any dislocation 
 where ligaments are severed, or any other injury 
 known in surgery to be permanent partial disability. 
 For any permanent partial disability resulting from 
 an injury, the workman shall receive compensation in 
 a lump sum in an amount equal to the extent of the 
 injury, to be decided in the first instance by the de- 
 partment, but not in any case to exceed the sum of 
 $1,500.00. The loss of one major arm at or above the 
 elbow shall be deemed the maximum permanent 
 partial disability. Compensation for any other per- 
 manent partial disability shall be in the proportion 
 which the extent of such disability shall bear to the 
 said maximum. If the injured workman be under the 
 age of twenty-one years and unmarried, the parents
 
 272 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 or parent shall also receive a lump sum payment equal 
 to ten per cent of the amount awarded the minor 
 workman. 
 
 " (g) Should a further accident occur to a workman 
 already receiving a monthly payment under this sec- 
 tion for a temporary disability, or who has been pre- 
 viously the recipient of a lump sum payment under 
 this act, his future compensation shall be adjusted 
 according to the other provisions of this section and 
 with regard to the combined effect of his injuries, and 
 his past receipt of money under this act." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-9 (2). (a) If the accident causes total 
 disability, sixty-five per cent of the average weekly 
 earnings during the period of such total disability; 
 provided that, if the disability is such as not only to 
 render the injured employe entirely incapable of 
 work, but also so helpless as to require the assistance 
 of a nurse, the weekly indemnity during the period of 
 such assistance after the first ninety days shall be 
 increased to one hundred per cent of the average 
 weekly earnings. 
 
 ******** 
 
 "(c) If the disability caused by the accident 
 is at times total and at times partial, the weekly 
 indemnity during the periods of each such total or 
 partial disability shall be in accordance with said 
 subdivisions (a) and (6), respectively. 
 
 "(d) Said subdivisions (a), (6), and (c) shall be 
 subject to the following limitations: 
 
 Aggregate disability indemnity for injury to a 
 single employe caused by a single accident shall not
 
 TOTAL OR PERMANENT DISABILITY 273 
 
 Wisconsin 
 
 exceed four times the average annual earnings of 
 such employe. 
 
 The aggregate disability period shall not, in any 
 event, extend beyond fifteen years from the date 
 of the accident. 
 
 The weekly indemnity due on the eighth day after 
 the employe leaves work as the result of the injury 
 may be withheld until the twenty-ninth day after 
 he so leaves work; if recovery from the disability 
 shall then have occurred, such first weekly indemnity 
 shall not be recoverable; if the disability still con- 
 tinues, it shall be added to the weekly indemnity 
 due on said twenty-ninth day and be paid therewith. 
 
 If the period of disability does not last more than 
 one week from the day the employe" leaves work as the 
 result of the injury no indemnity whatever shall be 
 recoverable." 
 
 "3. The death of the injured employe* shall not 
 affect the obligation of the employer under subsections 
 1 and 2 of this section, so far as liability shall have 
 become payable at the time of death; but the death 
 shall be deemed the termination of disability, and the 
 employer shall thereupon be liable for the following 
 death benefits in lieu of any further disability in- 
 demnity:" (For death benefits see Chapter VIII, 
 ante, page 229.) 
 
 For the manner of arriving at the weekly earnings 
 and the average annual earnings, see 2394-10 re- 
 printed in Chapter VIII, ante, page 231. 
 
 18
 
 CHAPTER X 
 
 COMPENSATION FOR PARTIAL OR TEMPORARY 
 DISABILITY 
 
 Page 
 
 1. Introduction 274 
 
 2. Pain and suffering not compensated 275 
 
 3. Convict not entitled to compensation 275 
 
 4. Ability to do light work after accident; exaggeration of in- 
 
 jury 276 
 
 5. Ability to earn same wages after as before accident, in an- 
 
 other class of work 276 
 
 6. Reduced earnings owing to general fall in wages 276 
 
 7. Workman receiving same wages after as before injury. . . . 277 
 
 8. Wages and compensation in excess of wages before accident 277 
 
 9. Wages and compensation after accident need not equal 
 
 wages before injury 277 
 
 10. Infant; "probable earnings" 277 
 
 11. Clumsiness due to injury as ground of incapacity 278 
 
 12. Wages paid seaman under shipping act taken into account 
 
 in awarding compensation 278 
 
 13. Voluntary idleness of workman tending to prolong dis- 
 
 ability 279 
 
 14. Deducting hospital fees from compensation 279 
 
 15. Vocation diseases; contracted partly in the employment of 
 
 two employers; apportioning compensation 280 
 
 16. Disability by disease accelerated by accident; basis of com- 
 
 pensation 280 
 
 17. Unsuccessful efforts to obtain employment 280 
 
 Page Page 
 
 CALIFORNIA 281 NEW HAMPSHIRE 287 
 
 ILLINOIS 281 NEW JERSEY 288 
 
 KANSAS 281 OHIO 290 
 
 MASSACHUSETTS 282 RHODE ISLAND 291 
 
 MICHIGAN 283 WASHINGTON 292 
 
 NEVADA 287 WISCONSIN 293 
 
 274
 
 PARTIAL OR TEMPORARY DISABILITY 275 
 
 Convict not entitled to compensation 
 
 1. Introduction. 
 
 Some of the statutes provide specific sums for per- 
 manent partial " disability," such as the loss of a 
 finger, a hand, etc. The term is a misnomer in some 
 instances. For example, the loss of a toe might cause 
 very brief disability. Generally speaking there has 
 been no effort to define partial disability. Undoubtedly 
 many difficult questions will arise under the provisions 
 of the laws printed in this chapter. For example, it has 
 been held that even though a man has suffered an 
 injury which is permanent in character, but earns as 
 much or more than he did before the accident, he does 
 not suffer any disability or incapacity. Although in 
 such cases a nominal award is made sometimes to keep 
 the case open should the disability recur. 
 
 The decisions hereafter cited are all applicable to 
 one or more of the acts of the different States. 
 
 The manner of arriving at the " average wages" as 
 the basis of compensation is discussed fully in Chap- 
 ter IX, ante, page 242. 
 
 2. Pain and suffering not compensated. 
 
 The Act does not give compensation in respect of 
 pain and suffering. Where a workman is hi receipt of 
 the same amount of wages as he earned before the ac- 
 cident, he cannot recover any compensation until such 
 time as he may become incapable of earning that 
 amount, irons v. Davis & Timmins (1899), 80 L. T. 
 673; 1 W. C. C. 26. 
 
 3. Convict not entitled to compensation. 
 
 A workman receiving compensation who is sen- 
 tenced to prison is not entitled to such compensation
 
 276 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Reduced earnings owing to general fall in wages 
 
 while in prison. Clayton and Shuttleworth v. Dobbs 
 (1908), 2 B. W. C. C. 488. 
 
 4. Ability to do light work after accident; exaggeration 
 of injury. 
 
 A workman was injured in a colliery and drew com- 
 pensation for about four years. It was then alleged he 
 was fit for light work, but he said he could not do it on 
 account of pain. The arbitrator found, as a fact, that 
 the workman was exaggerating and that he could do 
 light work. It was held that there was evidence upon 
 which the arbitrator could so find. Price v. Burnyeat, 
 Brown & Co. (1907), 2 B. W. C. C. 337. 
 
 6. Ability to earn same wages after as before acci- 
 dent, in another class of work. 
 An unskilled workman who is able to do other work 
 than that which he was doing before he was injured, is 
 not entitled to compensation merely because he is 
 unable to do such former work. Cammell, Laird & Co. 
 v. Plait (1908), 2 B. W. C. C. 368. 
 
 6. Reduced earnings owing to general fall in wages. 
 
 A workman, who in the course of his employment, 
 met with an accident necessitating the amputation of 
 his right hand, subsequently accepted employment in 
 a different capacity, receiving the same wages he had 
 earned before the accident. Some time later his wages 
 were reduced owing to a general fall in wages, and upon 
 his claim for compensation, it was held that the change 
 in his wages was not attributable to any change in his 
 capacity to earn wages, and therefore he was not en- 
 titled to compensation. Merry & Cuninghame v. 
 Black (1909), 46 Scotch L. R. 812; 2 B. W. C. C. 372.
 
 PARTIAL OR TEMPORARY DISABILITY 277 
 
 Infant, "probable earnings" 
 
 7. Workman receiving same wages after as before 
 
 injury. 
 
 If a workman earns after the accident the same 
 amount of wages as he had previously earned, he is not 
 at that time entitled to receive compensation. In 
 such a case the workman is entitled to an award fixing 
 the employer with liability, but the assessment of com- 
 pensation may be adjourned until such time as the 
 workman suffers loss through disability. Chandler v. 
 Smith & Son (1899), 1 W. C. C. 19. 
 
 8. Wages and compensation in excess of wages be- 
 
 fore accident. 
 
 Where an injured workman to whom compensation 
 is being paid secures other employment whereby his 
 wages and compensation exceed his wages before the 
 injury the compensation should be reduced so he 
 shares the loss with his employer. Anley's Executors v. 
 Neale (1907), 9 W. C. C. 34. 
 
 9. Wages and compensation after accident need not 
 
 equal wages before injury. 
 
 An injured workman who had previously earned 
 32s. 6d -per week, earned 25s. per week after the ac- 
 cident. He claimed 7s. Qd. per week, and the judge 
 awarded him 3s. 9d. He appealed. It was held that 
 there was no misdirection and the judge was not com- 
 pelled to give the full difference between the earnings 
 before and after the accident. Humphreys v. City of 
 London Electric Lighting Co. (1911), 4 B. W. C. C. 275. 
 
 10. Infant, " probable earnings." 
 
 Where a minor is injured compensation may be
 
 278 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wages paid seaman under shipping act 
 
 awarded on the theory that he would "probably be 
 earning" higher wages if it were not for the injury. 
 Edwards v. The Alyn Steel Tinplate Co. (1910), 3 B. W. 
 C. C. 141. 
 
 11. Clumsiness due to injury as ground of incapacity. 
 A waitress had an injury to her finger, which, be- 
 coming stiff, prevented her from working as efficiently 
 as before. She received compensation for some time, 
 and then returned to her old work at her old wages. 
 She could not work as well as she did before, and her 
 employers complained of her clumsiness. She left this 
 work of her own accord, and, without any attempt to 
 find other work, claimed compensation. The County 
 Court judge found that she could not work as well as 
 before, and that she was therefore partially incapac- 
 itated, and he awarded her compensation. It was held 
 on appeal that there was evidence to support this 
 finding. Ward v. Miles (1911), 4 B. W. C. C. 182. 
 
 12. Wages paid seaman under shipping act taken 
 into account in awarding compensation. 
 
 A seaman was injured at sea, and eight days later was 
 placed in a hospital at New York, and discharged from 
 the ship. In pursuance of the Merchant Shipping Acts, 
 the shipowners paid him wages in respect of the eight 
 days, maintained him in the hospital, and brought him 
 back to England on his recovery. He claimed com- 
 pensation from the date of his return to England. The 
 employers asked that accounts should be taken of 
 the wages for the eight days as a payment made by 
 them to the workman during incapacity. The County 
 Court judge held that these wages being paid under a
 
 PARTIAL OR TEMPORARY DISABILITY 279 
 
 Deducting hospital fees from compensation 
 
 statutory liability, could not be so taken into account. 
 The Court of Appeal reversed its decision. The House 
 of Lords reversed the decision of the Court of Appeal, 
 and held that the wages paid for eight days must be 
 taken into account in fixing the amount of the weekly 
 payments. McDermott v. Owners of S. S. Tintoretto 
 (1910), 103 L. T. 769; 4 B. W. C. C. 123. 
 
 13. Voluntary idleness of workman as tending to 
 prolong disability. 
 
 The judge, who sat with a medical assessor, came to 
 the conclusion that if the workman had taken proper 
 steps to obtain exercise which he ought to have taken 
 more than a year before the hearing, he would have 
 recovered from any disability, and that his present 
 state was due only to want of condition arising from 
 long-continued and unnecessary idleness. Compensa- 
 tion, therefore, was denied. The decision of the County 
 Court judge was sustained on appeal. Upper Forest 
 and Worcester Steel and Tinplate Co. v. Grey (1910), 3 
 B. W. C. C. 424. 
 
 14. Deducting hospital fees from compensation. 1 
 
 An injured workman was treated at a hospital where 
 the fees were paid by the employers, who claimed that 
 they were entitled to a deduction for the fees so paid. 
 It was held that the payment was clearly a benefit to 
 
 1 Such a question could usually not arise under the statutes of 
 the various States, as they require the employer to furnish medical 
 attention to a limited amount. Of course if the medical fees ex- 
 ceeded the statutory limitation in any case the principle of the case 
 in the text might apply. The British Act does not have any pro- 
 vision for medical attention.
 
 280 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Unsuccessful efforts to obtain employment 
 
 the workman within the meaning of Schedule I (3), and 
 the employers could therefore deduct the fees so paid 
 from the compensation. Suleman v. Owners of the 
 "Ben Lomond" (1909), 2 B. W. C. C. 499. 
 
 15. Vocational diseases; contracted partly in the em- 
 ployment of two employers; apportioning com- 
 pensation. 
 
 Where an industrial disease is contracted by a gradual 
 process, "and during the twelve months previous to the 
 incapacity the workman has been employed by two 
 employers, in the absence of any special risk or degree 
 of the poison in either employment, the period of em- 
 ployment by each employer is the basis for calculating 
 the proportion of the compensation which should be 
 paid by each. Lees v. Waring & Gillow (Ferguson, third 
 party), (1909), 2 B. W. C. C. 474. 
 
 16. Disability by disease accelerated by accident; 
 basis of compensation. 
 
 Where it is proved that apart from accident a disease 
 would have caused incapacity for work on a given day 
 in the future, and that an accident has accelerated the 
 progress of the disease so as to cause present incapacity, 
 the award should limit the time during which compen- 
 sation is to be paid to the period during which in- 
 capacity is caused by the acceleration of the progress 
 of the disease. Ward v. London and North Western Ry. 
 Co. (1901), 3 W. C. C. 192. 
 
 17. Unsuccessful efforts to obtain employment. 
 
 If a man has unsuccessfully made reasonable bona 
 fide efforts to obtain employment at work which he is
 
 PARTIAL OR TEMPORARY DISABILITY 281 
 
 Kansas 
 
 physically capable of performing he is not able to earn 
 anything. Clark v. Gas Light & Coke Co. (1905), 7 W. 
 C. C. 119. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "8(2) (6) If the accident causes partial disa- 
 bility, sixty-five per cent of the weekly loss in wages 
 during the period of such partial disability." 
 
 For indemnity when disability is at times total and 
 at times partial, see Chapter IX, ante, page 253. 
 
 For limitation on time of payments see Chapter IX, 
 ante, pages 253-4. 
 
 For manner of computing amounts payable see 
 Chapter IX, ante, page 254. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 The provisions of the Illinois Statute for perma- 
 nent and temporary disability are so interwoven that 
 it is impossible to segregate the different provisions. 
 They will all be found, therefore, in Chapter IX, ante, 
 page 256. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "11. (c) When partial incapacity for work re- 
 sults from injury, periodical payments during such 
 incapacity, commencing at the end of the second week, 
 shall not be less than twenty-five per cent, nor exceed- 
 ing fifty per cent, based upon the average weekly earn-
 
 282 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 ings computed as provided in section 12, but in no 
 case less than three dollars per week or more than 
 twelve dollars per week; provided, however, that if 
 the workman is under twenty-one years of age at the 
 date of the accident and the average weekly earnings 
 are less than $10.00 his compensation shall not be 
 less than seventy-five per cent of his average earn- 
 ings. No such payment for total or partial disability 
 shall extend over a period exceeding ten years." 
 
 For the rule of compensation; that is, the manner of 
 computing the wages to be made the basis of the 
 award for compensation, see 12, reprinted in Chap- 
 ter IX, ante, page 259. 
 
 " 13. Payments to the injured workman. The pay- 
 ments shall be made at the same time, place, and in 
 the same manner as the wages of the workman were 
 payable at the time of the accident, but a judge of any 
 district court having jurisdiction upon application 
 of either party may modify such regulation in a 
 particular case as to him may seem just. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part II, 10. While the incapacity for work re- 
 sulting from the injury is partial, the association 
 shall pay the injured employe a weekly compensation 
 equal to one-half the difference between his average 
 weekly wages before the injury and the average 
 weekly wages which he is able to earn thereafter, 
 but not more than ten dollars a week; and in no case 
 shall the period covered by such compensation be 
 greater than three hundred weeks from the date of 
 the injury."
 
 PARTIAL OR TEMPORARY DISABILITY 283 
 
 Michigan 
 
 Certain specified sums are also payable for loss of 
 a leg, an arm, a finger, a toe, etc. Part II, 11. See 
 Chapter IX, ante, page 261. 
 
 MICHIGAN 
 (L. 1912, c. 000) 
 
 "Part II, 10. While the incapacity for work re- 
 sulting from the injury is partial, the 3mployer shall 
 pay, or cause to be paid as hereinafter provided, to 
 the injured employe a weekly compensation equal to 
 one-half the difference between his average weekly 
 wages before the injury and the average weekly wages 
 which he is able to earn thereafter, but not more than 
 ten dollars a week; and in no case shall the period 
 covered by such compensation be greater than three 
 hundred weeks from the date of the injury. In cases 
 included by the following schedule the disability in 
 each such case shall be deemed to continue for the 
 period specified, and the compensation so paid for 
 such injury shall be as specified therein, to-wit: 
 
 "For the loss of a thumb, fifty per centum of the 
 average weekly wages during sixty weeks; 
 
 "For the loss of a first finger, commonly called 
 index finger, fifty per centum of average weekly 
 wages during thirty-five weeks; 
 
 "For the loss of a second finger, fifty per centum of 
 average weekly wages during thirty weeks; 
 
 "For the loss of a third finger, fifty per centum of 
 average weekly wages during twenty weeks; 
 
 "For the loss of a fourth finger, commonly called 
 little finger, fifty per centum of average weekly wages 
 during fifteen weeks; 
 
 "The loss of the first phalange of the thumb, or of 
 any finger, shall be considered to be equal to the loss
 
 284 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 of one-half of such thumb, or finger, and compensation 
 shall be one-half the amounts above specified; 
 
 "The loss of more than one phalange shall be con- 
 sidered as the loss of the entire finger or thumb: 
 Provided, however, That in no case shall the amount 
 received for more than one finger exceed the amount 
 provided in this schedule for the loss of a hand; 
 
 "For the loss of a great toe, fifty per centum of 
 average weekly wages during thirty weeks; 
 
 "For the loss of one of the toes other than a great 
 toe, fifty per centum of average weekly wages during 
 ten weeks; 
 
 "The loss of the first phalange of any toe shall be 
 considered to be equal to the loss of one-half of such 
 toe, and compensation shall be one-half of the amount 
 above specified; 
 
 "The loss of more than one phalange shall be con- 
 sidered as the loss of the entire toe; 
 
 "For the loss of a hand, fifty per centum of average 
 weekly wages during one hundred and fifty weeks; 
 
 " For the loss of an arm, fifty per centum of average 
 weekly wages during two hundred weeks; 
 
 "For the loss of a foot, fifty per centum of average 
 weekly wages during one hundred and twenty-five 
 weeks ; 
 
 "For the loss of a leg, fifty per centum of average 
 weekly wages during one hundred and seventy-five 
 weeks; 
 
 "For the loss of an eye, fifty per centum of average 
 weekly wages during one hundred weeks; 
 
 "The loss of both hands, or both arms, or both feet, 
 or both legs, or both eyes, or of any two thereof, shall 
 constitute total and permanent disability, to be com- 
 pensated according to the provisions of section nine. 
 
 "The amounts specified in this clause are all sub-
 
 PARTIAL OR TEMPORARY DISABILITY 285 
 
 Michigan 
 
 ject to the same limitations as to maximum and min- 
 imum as above stated. 
 
 " 11. The term 'average weekly wages' as used in 
 this act is denned to be one fifty-second part of the 
 average annual earnings of the employe. If the injured 
 employe has not worked in the employment in which he 
 was working at the time of the accident, whether for 
 the employer or not, during substantially the whole 
 of the year immediately preceding his injury, his 
 average annual earnings shall consist of three hundred 
 times the average daily wage or salary which he has 
 earned in such employment during the days when so 
 employed. If the injured employe has not worked in 
 such employment during substantially the whole of 
 such immediately preceding year, his average annual 
 earnings shall consist of three hundred times the 
 average daily wage or salary which an employe of the 
 same class working substantially the whole of such 
 immediately preceding year in the same or a similar 
 employment in the same or a neighboring place, shall 
 have earned in such employment during the days 
 when so employed. In cases where the foregoing 
 methods of arriving at the average annual earnings of 
 the injured employe cannot reasonably and fairly be 
 applied, such annual earnings shall be taken at such 
 sum as, having regard to the previous earnings of the 
 injured employe, and of other employes of the same 
 or most similar class, working in the same or most 
 similar employment, in the same or neighboring lo- 
 cality, shall reasonably represent the annual earning 
 capacity of the injured employe at the time of the 
 accident in the employment in which he was working 
 at such time. The fact that an employe has suffered 
 a previous disability, or received compensation there- 
 for, shall not preclude compensation for a later in-
 
 286 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 jury, or for death, but in determining compensation 
 for the later injury, or death, his average annual earn- 
 ings shall be such sum as will reasonably represent his 
 annual earning capacity at the time of the later injury 
 in the employment in which he was working at such 
 time, and shall be arrived at according to and subject 
 to the limitations of the provisions of this section. 
 The weekly loss in wages referred to in this act shall 
 consist of such percentage of the average weekly 
 earnings of the injured employ 6, computed according 
 to the provisions of this section, as shall fairly repre- 
 sent the proportionate extent of the impairment of 
 his earning capacity in the employment in which he 
 was working at the time of the accident, the same to 
 be fixed as of the time of the accident, but to be de- 
 termined in view of the nature and extent of the in- 
 jury. " 
 
 " 12. The death of the injured employe* prior to 
 the expiration of the period within which he would 
 receive such weekly payments shall be deemed to end 
 such disability, and all liability for the remainder of 
 such payments which he would have received in case 
 he had lived shall be terminated, but the employer 
 shall thereupon be liable for the following death 
 benefits in lieu of any further disability indemnity: 
 
 "If the injury so received by such employ 6 was the 
 proximate cause of his death, and such deceased em- 
 ploye" 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 employe", to make the total 
 compensation for the injury and death exclusive of 
 medical and hospital services and medicines furnished
 
 PARTIAL OR TEMPORARY DISABILITY 287 
 
 New Hampshire 
 
 as provided in section four hereof, equal to the full 
 amount which such dependents would have been en- 
 titled to receive under the provisions of section five 
 hereof in case the accident had resulted in immediate 
 death, and such benefits shall be payable in weekly 
 installments in the same manner and subject to the 
 same terms and conditions in all respects as payments 
 made under the provisions of said section five. 
 
 " 13. No savings or insurance of the injured em- 
 ploye", nor any contribution made by him to any 
 benefit fund or protective association independent of 
 this act, shall be taken into consideration in determin- 
 ing 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." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 The provisions of the statute for compensation for 
 total and partial disability are combined in 6 in such 
 a way as to make segregation impossible. See Chapter 
 IX, ante, page 263. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 Total and partial incapacity are so interwoven in 
 6, (2), of the Act that it is impossible to segregate 
 them. See Chapter IX, ante, page 264.
 
 288 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "2. (11). Following is the schedule of compen- 
 sation : 
 
 (a) Schedule of payments. Temporary disability. 
 Proviso. For injury producing temporary disability, 
 fifty per centum of the wages received at the time 
 of injury, subject to a maximum compensation of 
 ten dollars per week and a minimum of 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. This compensation shall be paid 
 during the period of such disability, not, however, 
 beyond three hundred weeks." 
 
 "(c) Partial disability. For disability partial in 
 character but permanent in quality, the compen- 
 sation shall be based upon the extent of such disa- 
 bility. In cases included by the following schedule 
 the compensation shall be that named in the schedule, 
 to wit: 
 
 " Thumb. For the loss of a thumb, fifty per centum 
 of daily wages during sixty days. 
 
 "First finger. For the loss of a first finger, com- 
 monly called index finger, fifty per centum of daily 
 wages during thirty-five weeks. 
 
 "Second finger. For the loss of a second finger, 
 fifty per centum of daily wages during thirty weeks. 
 
 "Third finger. For the loss of a third finger, fifty 
 per centum of daily wages during twenty weeks. 
 
 "Fourth finger. For the loss of a fourth finger,
 
 PARTIAL OR TEMPORARY DISABILITY 289 
 
 New Jersey 
 
 commonly called little finger, fifty per centum of 
 daily wages during fifteen weeks. 
 
 "Phalange. The loss of the first phalange of the 
 thumb, or of any finger, shall be considered to be 
 equal to the loss of one-half of such thumb, or finger, 
 and compensation shall be one-half the amounts above 
 specified. 
 
 "More than one phalange. Proviso. The loss of 
 more than one phalange shall be considered as the 
 loss of the entire finger or thumb; providing, however, 
 that in no case shall the amount received for more 
 than one finger exceed the amount provided in this 
 schedule for the loss of a hand. 
 
 "Great toe. For the loss of a great toe, fifty per 
 centum of daily wages during thirty weeks. 
 
 "Other toes. For the loss of one of the toes other 
 than a great toe, fifty per centum of daily wages dur- 
 ing ten weeks. 
 
 "Phalange of toe. For the loss of the first phalange 
 of any toe shall be considered to be equal to the loss 
 of one-half of such toe, and compensation shall be 
 one-half of the amount above specified. 
 
 "More than one phalange. The loss of more than 
 one phalange shall be considered as the loss of the en-- 
 tire toe. 
 
 "Hand. For the loss of a hand, fifty per centum 
 of daily wages during one hundred and fifty weeks. 
 
 "Arm. For the loss of an arm, fifty per centum 
 of daily wages during two hundred weeks. 
 
 "Foot. For the loss of a foot, fifty per centum of 
 daily wages during one hundred and twenty-five 
 weeks. 
 
 "Leg. For the loss of a leg, fifty per centum of 
 daily wages during one hundred and seventy-five 
 weeks. 
 
 19
 
 290 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 " Eye. For the loss of an eye, fifty per centum of 
 daily wages during one hundred weeks. 
 
 "Both hands, etc. The loss of both hands, or both 
 arms, or both feet, or both legs, or both eyes, or of any 
 two thereof, shall constitute total and permanent 
 disability, to be compensated according to the pro- 
 visions of clause (6). 
 
 "In other cases. In all other cases in this class the 
 compensation shall bear such relation to the amounts 
 stated in the above schedule as the disabilities bear 
 to those produced by the injuries named in the 
 schedule. Should the employer and employe" be un- 
 able to agree upon the amount of compensation to 
 be paid in cases not covered by the schedule, the 
 amount of compensation shall be settled according 
 to the provisions of paragraph twenty hereof. 
 
 "Maximum and minimum amount. The amounts 
 specified in this clause are all subject to the same 
 limitations as to maximum and minimum as are 
 stated in clause (a)." l 
 
 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. 
 III, paragraph 23. See Chapter XVII, post, page 340. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 26. Partial disability compensation. In case of 
 temporary or partial disability, the employe* shall 
 
 1 Maximum of $10 a week and minimum of $5 a week; provided, 
 that if at the time of the injury the employ^ receives wages less than 
 $5 per week then he shall receive the full amount of such wages. 
 See 2 (11) (a), ante, page 288, this chapter.
 
 PARTIAL OR TEMPORARY DISABILITY 291 
 
 Rhode Island 
 
 receive sixty-six and two-thirds per cent of the im- 
 pairment of his earning capacity during the con- 
 tinuance thereof, not to exceed a maximum of twelve 
 dollars per week, and not less than a minimum of 
 five dollars per week, if the employees wages were 
 less than five dollars per week, then he shall receive 
 his full wages; but not to continue for more than six 
 years from the date of the injury, nor to exceed three 
 thousand four hundred dollars in amount from that 
 injury." 
 
 "31. Basis of compensation. The average weekly 
 wage of the injured person at the time of the injury 
 shall be taken as the basis upon which to compute 
 the benefits. 
 
 "32. Future earnings considered. If it is estab- 
 lished that the injured employe* was of such age and 
 experience when injured as that under natural con- 
 ditions his wages would be expected to increase, the 
 fact may be considered in arriving at his average 
 weekly wage." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 11. Partial incapacity. While the in- 
 capacity for work resulting from the injury is partial, 
 the employer shall pay the injured employe" a weekly 
 compensation equal to one-half the difference be- 
 tween his average weekly wages, earnings or salary, 
 before the injury and the average weekly wages, earn- 
 ings or salary which he is able to earn thereafter, but 
 not more than ten dollars a week; and in no case shall 
 the period covered by such compensation be greater 
 than three hundred weeks from the date of the injury." 
 
 For amount payable for specific injuries, see Chap- 
 ter IX, ante, page 266.
 
 Wisconsin 
 
 For definition of average weekly wage, see 13, Chap- 
 ter IX, ante, page 267. 
 
 No deductions are to be made from compensation 
 by reason of insurance or other benefits due to the 
 employed Art. II, 14. See Chapter VIII, ante, 
 page 226. 
 
 Payments to minors and mental incompetents, see 
 Art. II, 16, Chapter VIII, ante, page 227. 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 The provisions in the Washington Act for permanent, 
 total, temporary and partial disability are so inter- 
 mingled that it is impossible to segregate them and they 
 are all printed in Chapter IX, ante, page 269. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-9 (2) (6) If the accident causes partial 
 disability, sixty-five per cent of the weekly loss in 
 wages during the period of such partial disability. 
 
 " (c) If the disability caused by the accident is at 
 times total and at times partial, the weekly indemnity 
 during the periods of each such total or partial dis- 
 ability shall be in accordance with said subdivisions (a) 
 and (6), respectively. 
 
 "(d) Said subdivisions (a), (6), and (c) shall be 
 subject to the following limitations: 
 
 "Aggregate disability indemnity for injury to a 
 single employe" caused by a single accident shall not 
 exceed four times the average annual earnings of such 
 employe". 
 
 "The aggregate disability period shall not, in any
 
 PARTIAL OR TEMPORARY DISABILITY 293 
 
 Wisconsin 
 
 event, extend beyond fifteen years from the date of 
 the accident. 
 
 "The weekly indemnity due on the eighth day after 
 the employe leaves work as the result of the injury 
 may be withheld until the twenty-ninth day after he 
 so leaves work; if recovery from the disability shall 
 then have occurred, such first weekly indemnity shall 
 not be recoverable; if the disability still continues, it 
 shall be added to the weekly indemnity due on said 
 twenty-ninth day and be paid therewith. 
 
 "If the period of disability does not last more than 
 one week from the day the employe" leaves work as the 
 result of the injury no indemnity whatever shall be 
 recoverable. 
 
 "3. The death of the injured employ 6 shall not 
 affect the obligation of the employer under subsec- 
 tions 1 and 2 of this section, so far as his liability shall 
 have become payable at the time of death; but the 
 death shall be deemed the termination of disability, 
 and the employer shall thereupon be liable for the 
 following death benefits in lieu of any further disabil- 
 ity indemnity:" (For death benefits see Chapter VIII, 
 ante, page 229). 
 
 For the manner of arriving at the weekly earnings 
 and the average annual earnings, see 2394-10, re- 
 printed in Chapter VIII, ante, page 231.
 
 CHAPTER XI 
 
 COMMUTATION OF AWARD OR AGREED COMPENSA- 
 TION BY PRESENT PAYMENT OF LUMP SUM, BY 
 ANNUITY OR OTHERWISE 1 
 
 Page Page 
 
 CALIFORNIA 295 NEW HAMPSHIRE 299 
 
 ILLINOIS 295 NEW JERSEY 299 
 
 KANSAS 296 OHIO 299 
 
 MASSACHUSETTS . .... 298 RHODE ISLAND 300 
 
 MICHIGAN , 298 WASHINGTON 301 
 
 NEVADA 298 WISCONSIN 302 
 
 Most of the statutes contain specific provisions re- 
 lating to present lump-sum payments in full settle- 
 ment of any claim for compensation. Each statute 
 must be consulted. The decisions below will be found 
 useful in applying the principles underlying such 
 lump-sum payments. 
 
 In arriving at a lump sum to be paid the court should 
 not take the actual value of the compensation based on 
 the man's age and his expectancy of life, but upon a 
 business footing as between employer and employe". 
 Grant & Aldcrofl v. Conroy (1904), 6 W. C. C. 153. 
 
 A workman in receipt of maximum compensation of 
 17s. 3d. per week, agreed with his employers to receive 
 the sum of 175 to redeem the liability. The judge 
 refused to allow the agreement to be registered, but 
 this decision was overruled on appeal and the agree- 
 
 1 See Chapter XXXV, post, page 571, on COMPROMISING CLAIMS 
 AND AWARDS. 
 
 294
 
 COMMUTATION OF AWARD 295 
 
 Illinois 
 
 ment was ordered to be recorded. O'Neill v. The 
 Anglo-American Oil Co. (1909), 2 B. W. C. C. 434. 
 
 A workman sustained injuries in the course of his 
 employment, whereby he lost his arm. The employer 
 paid compensation for six months and then applied to 
 have the payments redeemed by payment of a lump 
 sum. The arbitrator, without inquiring as to the work- 
 man's capacity for work, fixed the amount of the lump 
 sum on the basis of permanent incapacity, and it was 
 held on appeal that the arbitrator had not exceeded his 
 jurisdiction. National Telephone Co. v. Smith (1909), 
 46 Scotch L. R. 988; 2 B. W. C. C. 417. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 The amounts payable under the Act must be paid 
 "in weekly installments," " unless and until the In- 
 dustrial Accident Board shall otherwise direct." 8 
 (3) (a). See Chapter VIII, ante, page 212. 
 
 But claims arising under the Act may be compromised 
 28. See Chapter XXXV, post, page 574. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 5^. Any person entitled to compensation under 
 this Act, or any employer who shall be bound to pay 
 compensation under this Act, who shall desire to have 
 such compensation, or any part thereof, paid in a lump 
 sum, may petition any court of competent jurisdic- 
 tion of the county in which the employe" resided or 
 worked at the time of disability or death, asking that 
 such compensation be so paid, and if upon proper no-
 
 296 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 tice to the interested parties, and a proper showing 
 made before such court, it appears to the best interest 
 of the parties that such compensation be so paid, the 
 court shall order payment of a lump sum, and where 
 necessary, upon proper application being made, a 
 guardian, conservator or administrator, as the case 
 may be, shall be appointed for any person under dis- 
 ability who may be entitled to any such compensa- 
 tion, and an employer bound by the terms of this 
 Act, and liable to pay such compensation, may peti- 
 tion for such appointment where no such legal repre- 
 sentatives have been appointed or acting for such party 
 or parties so under disability." 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 " 14. Compensation to dependents, etc. Where 
 death results from the injury and the dependents of 
 the deceased workman as herein defined, have agreed 
 to accept compensation, and the amount of such com- 
 pensation- and the apportionment thereof between 
 them has been agreed to or otherwise determined, the 
 employer may pay such compensation to them accord- 
 ingly (or to an administrator if one be appointed) and 
 thereupon be discharged from all further liability for 
 the injury. Where only the apportionment of the 
 agreed compensation between the dependents is not 
 agreed to, the employer may pay the amount into any 
 district court having jurisdiction, or to the adminis- 
 trator of the deceased workman, with the same effect. 
 Where the compensation has been so paid into court 
 or to an administrator, the proper court, upon the 
 petition of such administrator or any of such depend- 
 ents, and upon such notice and proof as it may order
 
 COMMUTATION OF AWARD 297 
 
 Kansas 
 
 shall determine the distribution thereof among such 
 dependents. Where there are no dependents, medical 
 and funeral expenses may be paid and distributed in 
 like manner." 
 
 "31. Judgment upon agreement or award. At any 
 time after an agreement or award has been filed, the 
 workman may apply to the said district court for judg- 
 ment against the employer for a lump sum equal to 
 eighty per cent of the amount of payments due and 
 unpaid and prospectively due under the agreement or 
 award ; and, unless the agreement or award be stayed, 
 modified or canceled, or the liability thereunder be 
 redeemed or otherwise discharged, the court shall ex- 
 amine the workman under oath, and if satisfied that 
 the application is made because of doubt as to the 
 security of his compensation, shall compute the sum 
 and direct judgment accordingly, as if in an action; 
 provided, that if the employer shall give a good and 
 sufficient bond, approved by the court, no execution 
 shall issue on such judgment so long as the employer 
 continues to make payments in accordance with the 
 original agreement or award undiminished by the 
 discount." 
 
 " 33. Redemption of liability. Where any payment 
 has been continued for not less than six months the 
 liability therefor may be redeemed by the employer 
 by the payment to the workman of a lump sum of an 
 amount equal to eighty per cent of the payments 
 which may become due according to the award, 'such 
 amount to be determined by agreement, or, in default 
 thereof, upon application, to a judge of a district court 
 having jurisdiction. Upon paying such amount the 
 employer shall be discharged from all further liability 
 on account of the injury, and be entitled to a duly 
 executed release, upon filing which or other due proof
 
 298 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 of payment, the liability upon any agreement or 
 award shall be discharged of record." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 22. Whenever any weekly payment has 
 been continued for not less than six months, the lia- 
 bility therefor may in unusual cases be redeemed by 
 the payment of a lump sum by agreement of the par- 
 ties, subject to the approval of the industrial accident 
 board." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part II, 22. Whenever any weekly payment has 
 been continued for not less than six months, the liabil- 
 ity therefor may be redeemed by the payment of a 
 lump sum by agreement of the parties, subject to the 
 approval of the industrial accident board, and said 
 board may at any time direct in any case, if special 
 circumstances be found which in its judgment require 
 the same, that the deferred payments be commuted 
 on the present worth thereof at five per cent per 
 annum to one or more lump sum payments, and that 
 such payments shall be made by the employer or the 
 insurance company carrying such risk, or commis- 
 sioner of insurance, as the case may be." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision in the Nevada Statute on this 
 subject.
 
 COMMUTATION OF AWARD 299 
 
 Ohio 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 The court may grant an order for the payment of 
 a lump sum either on the application of the workman 
 or of the employer. 9, reprinted in Chapter XXIV, 
 post, page 427. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 " 2-21. Amount may be commuted. The amounts 
 payable periodically as compensation may be com- 
 muted to one or more lump sum payments by the 
 judge of the court of common pleas having jurisdiction 
 as set forth in the preceding paragraph, upon the 
 application of either party, in his discretion, provided 
 the same be in the interest of justice. Unless so ap- 
 proved, no compensation payments shall be com- 
 muted. 
 
 "Agreement or award may be modified. An agree- 
 ment or award of compensation may be modified at 
 any time by a subsequent agreement, or at any time 
 after one year from the time when the same became 
 operative it may be reviewed upon the application of 
 either party on the ground that the incapacity of the 
 injured employ 6 has subsequently increased or dimin- 
 ished. In such case the provisions of paragraph seven- 
 teen with reference to medical examination shall 
 apply." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 34. The board, under special circumstances, and 
 when the same is deemed advisable, may commute
 
 300 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 periodical benefits to one or more lump sum pay- 
 ments." 
 
 RHODE ISLAND 
 
 (Laws 1912, c. 000) 
 
 "Art. II, 25. Payment of lump sum. In case pay- 
 ments have continued for not less than six months 
 either party may, upon due notice to the other party, 
 petition the superior court for an order commuting 
 the future payments to a lump sum. Such petition 
 shall be considered by the superior court and may be 
 summarily granted where it is shown to the satisfac- 
 tion of the court that the payment of a lump sum in 
 lieu of future weekly payments will be for the best 
 interest of the person or persons receiving or depend- 
 ent upon such compensation, or that the continuance 
 of weekly payments will, as compared with lump sum 
 payments, entail undue expense or undue hardship 
 upon the employer liable therefor, or that the person 
 entitled to compensation has removed or is about to 
 remove from the United States. Where the commuta- 
 tion is ordered the superior court shall fix the lump 
 sum to be paid at an amount which will equal the 
 total sum of the probable future payments, capitalized 
 at their present value upon the basis of interest cal- 
 culated at five per centum per annum with annual 
 rests. Upon paying such amount the employer shall 
 be discharged from all further liability on account of 
 the injury or death, and be entitled to a duly executed 
 release, upon filing which, or other due proof of pay- 
 ment, the liability of such employer under any agree- 
 ment, award, findings, or decree shall be discharged 
 of record."
 
 COMMUTATION OF AWARD 301 
 
 Washington 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 " 5 (j). If a beneficiary shall reside or remove out 
 of the State the department may, in its discretion, 
 convert any monthly payments provided for such 
 case into a lump sum payment (not in any case to 
 exceed $4,000.00) upon the theory, according to the 
 expectancy of life as fixed by the American Mortality 
 Table, that a monthly payment of $20.00 to a person 
 thirty years of age is worth $4,000.00, or, with the 
 consent of the beneficiary, for a smaller sum. 
 
 "(k) Any court review under this section shall be 
 initiated in the county where the workman resides or 
 resided at the time of the injury, or in which the in- 
 jury occurred." 
 
 " 7. Conversion into lump sum payment. In case 
 of death or permanent total disability the monthly 
 payment provided may be converted, in whole or in 
 part, into a lump sum payment (not in any case to 
 exceed $4,000.00), on the theory, according to the 
 expectancy of life as fixed by the American Mortality 
 Table, that a monthly payment of $20.00 to a person 
 thirty years of age is worth the sum of $4,000.00, in 
 which event the monthly payment shall cease in whole 
 or in part accordingly or proportionately. Such con- 
 version may only be made after the happening of the 
 injury and upon the written application of the bene- 
 ficiary (in case of minor children, the application may 
 be by either parent) to the department, and shall rest 
 in the discretion of the department. Within the rule 
 aforesaid the amount and value of the lump sum pay- 
 ment may be agreed upon between the department 
 and the beneficiary."
 
 302 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-28. Any employer against whom liability 
 may exist for compensation under this act may, with 
 the approval of the industrial accident board, be re- 
 lieved therefrom by: 
 
 "1. Depositing the present value of the total un- 
 paid compensation for which such liability exists, 
 assuming interest at three per centum per annum, 
 with such trust company of this State as shall be 
 designated by the employe (or by his dependents, in 
 case of his death, and such liability exists in their 
 favor), or in default of such designation by him (or 
 them) after ten days' notice in writing from the em- 
 ployer, with such trust company of this State as shall 
 be designated by the board; or 
 
 "2. By the purchase of an annuity, within the 
 limitations provided by law, in any insurance com- 
 pany granting annuities and licensed in this State, 
 which may be designated by the employe", or his de- 
 pendents, or the board, as provided in subsection 1 
 of this section."
 
 CHAPTER XII 
 
 DEFINITION OF PERMANENT DISABILITY 
 
 Page Page 
 
 CALIFORNIA 303 NEW HAMPSHIRE 304 
 
 ILLINOIS 303 NEW JERSEY 304 
 
 KANSAS 303 OHIO 304 
 
 MASSACHUSETTS 303 RHODE ISLAND 304 
 
 MICHIGAN 304 WASHINGTON 305 
 
 NEVADA 304 WISCONSIN 305 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 There is no definition of permanent or total disability 
 in the California Act. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 No definition. See Chapter IX, ante, page 256. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 The Kansas Act contains no definition. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 There is no definition in the Act. 
 
 303
 
 304 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 The Michigan Act contains no definition. 
 
 NEVADA 
 (L. 1911, c. 183) 
 See 6, in Chapter IX, ante, page 263. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 There is no definition in the New Hampshire Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 See Chapters IX (ante, page 265) and X (ante, 
 page 288). 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 The Ohio Act contains no definition of permanent 
 liability. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 There are specific benefits for particular injuries of a 
 permanent character (Art. II, 12, Chapter IX) and a 
 definition of permanent total disability in Art. II, 10. 
 See Chapter IX, ante, page 266.
 
 DEFINITION OF PEEMANENT DISABILITY 305 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 See 5, in Chapter IX, ante, page 269. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 There is no definition of permanent or total disa- 
 bility in the Statute. 
 
 20
 
 CHAPTER XIII 
 
 DEFINITION OF TEMPORARY TOTAL DISABILITY 
 
 Page Page 
 
 CALIFORNIA 306 NEW HAMPSHIRE 307 
 
 ILLINOIS 306 NEW JERSEY 307 
 
 KANSAS '. 306 OHIO 307 
 
 MASSACHUSETTS 306 RHODE ISLAND 307 
 
 MICHIGAN 307 WASHINGTON 308 
 
 NEVADA 307 WISCONSIN 308 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 There is no definition of temporary or partial dis- 
 ability in the California Act. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 No definition. See Chapter IX, ante, page 256. 
 
 KANSAS 
 (L. 1911, c. 218) 
 The Kansas Act contains no definition. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 There is no definition in the Act. 
 
 306
 
 Rhode Island 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 The Michigan Act contains no definition. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 See 6, Chapter IX, ante, page 263. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 There is no definition in the New Hampshire Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 See Chapters IX (ante, page 265) and X (ante, 
 page 288). 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 The Ohio Act contains no definition of temporary 
 total disability. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 There is no definition of temporary total disability 
 in the Act. For benefits for specific injuries, see Art. II, 
 12, in Chapter IX, ante, page 266.
 
 308 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 See 5, in Chapter IX, ante, page 269. 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 There is no definition of temporary total disability 
 in the statute. 

 
 CHAPTER XIV 
 
 DEFINITION OF PERMANENT PARTIAL DISABILITY 
 
 Page Page 
 
 CALIFORNIA 309 NEW HAMPSHIRE 310 
 
 ILLINOIS 309 NEW JERSEY 310 
 
 KANSAS 309 OHIO 310 
 
 MASSACHUSETTS 309 RHODE ISLAND 310 
 
 MICHIGAN 310 WASHINGTON 311 
 
 NEVADA 310 WISCONSIN 311 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 There is no definition of permanent partial disability 
 in the California Act. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 No definition. See Chapter X, ante, page 281. 
 
 KANSAS 
 (L. 1911, c. 218) 
 The Kansas Act contains no definition. 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 There is no definition in the Act. 
 
 309
 
 310 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 MICHIGAN 
 (L. 1912, No. 3) 
 The Michigan Act contains no definition. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 See 6, in Chapter IX, ante, page 263. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 There is no definition in the New Hampshire Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 See Chapters IX (ante, page 265) and X (ante, page 
 
 288). 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 The Ohio Act contains no definition of permanent 
 partial disability. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 For specific benefits for injuries of a permanent na- 
 ture, even though disability may only be partial, see 
 Art. II, 12, in Chapter IX, ante, page 266.
 
 DEFINITION OF PERMANENT PARTIAL DISABILITY 311 
 
 Wisconsin 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 See 5, in Chapter IX, ante, page 269. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 There is no definition of permanent partial disability 
 in the statute.
 
 CHAPTER XV 
 
 DEFINITION OF TEMPORARY PARTIAL DISABILITY 
 
 Page Page 
 
 CALIFORNIA 312 NEW HAMPSHIRE 313 
 
 ILLINOIS 312 NEW JERSEY 313 
 
 KANSAS 312 OHIO 313 
 
 MASSACHUSETTS 312 RHODE ISLAND f 313 
 
 MICHIGAN 312 WASHINGTON 313 
 
 NEVADA 313 WISCONSIN 313 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 There is no definition of temporary partial disability 
 in the California Act. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 No definition. See Chapter X, ante, page 281. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 The Kansas Act contains no definition. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 There is no definition in the Act. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 The Michigan Act contains no definition. 
 
 312
 
 DEFINITION OF TEMPORARY PARTIAL DISABILITY 313 
 
 Wisconsin 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 See 6, in Chapter IX, ante, page 263. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 There is no definition in the New Hampshire Act. 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 See Chapters IX (ante, page 265) and X (ante, page 
 288). 
 
 OHIO 
 
 (L. 1911, c. 000) 
 The Ohio Act contains no definitions. 
 
 RHODE ISLAND 
 (L. 1911, c. 000) 
 
 For benefits for specific injuries, see Art. II, 12, in 
 Chapter IX, ante, page 266. There is no definition of 
 temporary partial disability in the Act. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 See 5, in Chapter IX, ante, page 269. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 There is no definition of temporary partial dis- 
 ability in the statute.
 
 CHAPTER XVI 
 
 WHO ARE DEPENDENTS 
 
 Page 
 
 1. In general 315 
 
 2. Dependent of more than one workman 315 
 
 3. Partial and total .dependents of same workman 316 
 
 4. Parents 316 
 
 5. Mother, whose husband is living, as dependent of son. . . . 317 
 
 6. Father dependent of son; allowance for son's maintenance 317 
 
 7. Widow and children dependents of father when other 
 
 children contribute to support of family. 318 
 
 8. Wife separated from husband before his death 318 
 
 9. Illegitimate children 319 
 
 10. Parents of illegitimate children 320 
 
 11. Posthumous child 320 
 
 12. Posthumous illegitimate child 320 
 
 13. Mother of illegitimate child as dependent of father of child 320 
 
 14. Aliens 321 
 
 15. Inmate of workhouse 321 
 
 16. Representative of deceased dependent 322 
 
 17. Right of dependents independent of that of deceased 323 
 
 18. Claim by dependents when compensation to workman ter- 
 
 minated before death 323 
 
 19. Dependents receiving other income because of death of 
 
 workman 324 
 
 20. Question of dependency is one of fact 324 
 
 21. Necessity of administering on estate 324 
 
 Page Page 
 
 CALIFORNIA 324 NEW HAMPSHIRE 328 
 
 ILLINOIS 325 NEW JERSEY 329 
 
 KANSAS 325 OHIO 329 
 
 MASSACHUSETTS 326 RHODE ISLAND 329 
 
 MICHIGAN 327 WASHINGTON 330 
 
 NEVADA 328 WISCONSIN 331 
 
 314
 
 WHO ARE DEPENDENTS 315 
 
 Dependent of more than one workman 
 
 1. In general. 
 
 The expression "dependent" means dependent for 
 the ordinary necessaries of life for a person of that 
 class and position in life, taking into account the 
 financial and social position of the recipient. Whether 
 a person is or is not dependent on a workman's earnings 
 is a question of fact. Simmons v. White Bros. (1899), 
 80 L. T. 344; 1 W. C. C. 89. The test of dependency is 
 not whether the family could support life without the 
 contributions of the deceased, but whether they de- 
 pended upon them as part of their income or means of 
 living. Howells v. Vivian and Sons (1901), 85 L. T. 
 529; 4 W. C. C. 106. A person may be a dependent of 
 a deceased workman even though such workman has 
 only sent money at irregular intervals and in irregular 
 amounts. Follis v. Schaake Machine Works (1908), 13 
 B. C.471;1B.W. C. C.442. 
 
 2, Dependent of more than one workman. 
 
 One person can be the dependent of more than one 
 workman and in case of death of two or more workmen 
 such dependent can recover more than the maximum 
 amount allowed for the death of one workman. (House 
 of Lords), Hodgson v. Owners of West Stanley Colliery 
 (1910), 102 L. T. 194; A. C. (H. L.) 229; 3 B. W. C. C. 
 260. In the last-mentioned case two sons and their 
 father, out of a family of ten, were killed in a mine 
 disaster. The wages of all three had gone into a com- 
 mon fund to support the family consisting of a mother 
 and six children besides those who were killed. None 
 of the other children were wage earners. It was held 
 that the widow was entitled to a death benefit by 
 way of compensation not only for the death of her
 
 316 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Parents 
 
 husband but also for the death of each of the two 
 
 sons. 
 
 3. Partial and total dependents of same workman. 
 
 Partial dependents may be entitled to compensation 
 although there are others who were wholly dependent 
 on the deceased workman. Robinson v. Anon (1904), 
 6 W. C. C. 117. 
 
 4. Parents. 
 
 A workman who was drowned at sea had been ac- 
 customed in previous employments to give money 
 regularly to his parents, who, with their family, claimed 
 compensation as dependents of the deceased. The 
 judge found that the family were partly dependent on 
 the workman's earnings, and awarded compensation. 
 On appeal it was held that dependency is a question of 
 fact, and that there was evidence to support the de- 
 cision. Turner and Others v. Miller and Richards 
 (1910), 3 B. W. C. C. 305. A father claimed compen- 
 sation as a dependent of his son who had paid con- 
 siderable sums to the family fund, while employed as a 
 fisherman, in the years 1906, 1907 and 1908. The last 
 payment was made early in 1909. In the summer of 
 that year he made two voyages of a month. He did 
 not send any part of his wages for these two voyages, 
 to his father, and on the last of these voyages he was 
 drowned. It was held that there was evidence to 
 'justify the County Court judge in finding that the 
 father was a partial dependent. Robertson v. Hall 
 'Brothers Steamship Co. (1910), 3 B. W. C. C. 368. The 
 deceased was a boy of sixteen earning 8s. a week, which 
 he gave to his parents, they providing him with food, 
 clothes, etc. His father was a collier earning 25s. a
 
 WHO ARE DEPENDENTS 317 
 
 Father dependent of son 
 
 week, and there were five other children, two of whom 
 contributed their earnings, the one 12s. and the other 
 7s. 6d. a week, to swell the common fund. It was held 
 that the parents were dependent upon the earnings of 
 the deceased. The Main Colliery Co. v. Davies (1900), 
 SOL. T.674;2W. C. C. 108. 
 
 5. Mother, whose husband is living, as dependent of 
 
 son. 
 
 A boy was killed. His mother was supported by her 
 husband but claimed compensation as a partial de- 
 pendent because the boy's earnings were paid into the 
 family fund. It was held by the House of Lords that 
 compensation should be awarded. McLean v. Moss 
 Bay Haematite Iron and Steel Co. (1910), 3 B. W. C. C. 
 402; following Hodgson v. Owners of West Stanley 
 Colliery, 3 B. W. C. C. 260. 
 
 6. Father dependent of son; allowance for son's 
 
 maintenance. 
 
 The applicant was the father of a workman who met 
 with a fatal accident. At the time of his death the 
 workman was aged fourteen years. His wages were 
 6s. lid. per week, which were given to his father and 
 helped to maintain the family. The father worked at 
 a colliery, and supplemented his earnings by carrying 
 on the trade of a barber on certain evenings and part 
 of Saturday. The deceased used to assist his father 
 as a barber, and the father estimated his services as 
 worth 6s. per week. The County Court judge held 
 that the father was not a dependent or partial de- 
 pendant, inasmuch as the 6s. lid. was not more than 
 sufficient to maintain the deceased. The decision of
 
 318 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wife separated from husband before his death 
 
 the County Court judge was reversed by the Court of 
 Appeal, holding that in case of partial dependency, it 
 was not legitimate to have regard to the amount which 
 the maintenance of the deceased would have cost. 
 Hall v. Tamworth Colliery Co. (1910), 4 B. W. C. C. 
 107. The decision of the Court of Appeal was reversed 
 by the House of Lords, however, where it was held that 
 in determining the question of fact as to the father's 
 dependency on the son, the County Court judge should 
 consider both the cost of the maintenance of the son and 
 the value to the father of the son's services in the 
 barber business. Tamworth Colliery Co. v. Hall (1911), 
 4 B. W. C. C. 313. 
 
 7. Widow and children dependents of father when 
 
 other children contribute to support of family. 
 The earnings of a father and a portion of the earn- 
 ings of three of the elder children were used to support 
 the family consisting of those mentioned, a wife, and 
 several younger children, who did not work. Upon the 
 death of the father it was held that the widow and the 
 younger children were wholly dependent upon the 
 father for support, within the meaning of the Com- 
 pensation Act. Senior v. Fountains & Burnley (1907), 
 23 T. L. R. 634; 9 W. C. C. 116. 
 
 8. Wife separated from husband before his death. 
 
 Where husband and wife were voluntarily living 
 apart and the wife was earning her own living at the 
 time of his death and did not receive any support from 
 him whatsoever prior to his death, it was held by the 
 House of Lords, reversing the Court of Appeal and 
 County Court that the widow was not entitled to com-
 
 WHO ARE DEPENDENTS 319 
 
 Illegitimate children 
 
 pensation. The rule was laid down that the mere fact 
 that a man in ordinary circumstances is liable to 
 support his wife in law, is not of itself sufficient evidence 
 to support a claim for compensation by his widow; 
 that the obligation or liability to support is not the 
 same as actual support. Lord ROBSON declared: 
 "Money coming to a widow under the Act is not a 
 present in consideration of her status; it is a payment 
 by a third person to compensate her, as a dependent, 
 for her actual pecuniary loss by her husband's death 
 and * * * there is no rule of law to prevent the 
 arbitrator from finding that, though married to the 
 deceased, the applicant was not in fact dependent upon 
 him." New Monckton Collieries v. Keeling (1911), 4 
 B. W. C. C. 332, reversing Keeling v. New Monckton 
 Collieries (1910), 4 B. W. C. C. 49. Where a woman 
 left her husband because of cruel treatment and had 
 lived apart from him and supported herself and a child 
 for about twelve years prior to the husband's death, it 
 was held that she was not a dependent and was not 
 entitled to compensation upon the death of the husband 
 through accident. Lindsay v. M'Glashen & Son (1908), 
 45 Scotch L. R. 559; 1 B. W. C. C. 85. A wife who had 
 been turned out of her home by her husband and had 
 not been living with or supported by him for eleven 
 years before his death, but who had made endeavors 
 to obtain support, was held to be in part dependent 
 upon her husband's earnings at the time of his death 
 and therefore entitled to compensation. Medler v. 
 Medkr (1908), 1 B. W. C. C. 332. 
 
 9. Illegitimate children. 
 An illegitimate child who was taken in charge by a
 
 Mother of illegitimate child 
 
 friend of the mother, was held not to be a dependent 
 of the mother who was killed by an accident. Briggs v. 
 Mitchell (1911), 48 Scotch L. R. 606; 4 B. W. C. C. 400. 
 But see Schofield v. Orrell Colliery Co. (1908), 100 L. 
 T. 104; 2 B. W. C. C. 301, cited in paragraph 12, below. 
 
 10. Parents of illegitimate children. 
 
 Neither the mother nor the putative father of an 
 illegitimate child are entitled to compensation upon 
 the death of the child, especially where the mother is 
 living with and being supported by her husband. 
 McLean v. Moss Bay Hematite Iron and Steel Co. (1909), 
 100 L. T. 871 ; 2 B. W. C. C. 282. 
 
 11. Posthumous child. 
 
 A posthumous child may be a dependent of a de- 
 ceased workman and entitled to compensation. (House 
 of Lords), Villar v. Gilbey (1907), A. C. 139; Williams 
 v. Ocean Coal Co. (1907), 97 L. T. 150; 9 W. C. C. 44. 
 An unborn child is dependent upon the earnings of the 
 father. Day v. Markham (1904), 6 W. C. C. 115. 
 
 12. Posthumous illegitimate child. 
 
 A posthumous illegitimate child may be a dependent 
 and entitled to compensation for the death of the 
 father of the child. Schofield v. Orrell Colliery Co. 
 (1908), 100 L. T. 104; 2 B. W. C. C. 301. 
 
 13. Mother of illegitimate child as dependent of 
 father of child. 
 
 The mother of an illegitimate child who has ob- 
 tained an order of filiation against the father of the 
 child is entitled to compensation on behalf of the
 
 WHO ARE DEPENDENTS 321 
 
 Inmate of workhouse 
 
 child, upon the death of the father through an accident, 
 even though the father had evaded payment of the 
 amount awarded in the filiation proceeding, by chang- 
 ing his name and concealing his identity. Bowhill Coal 
 Co. v. Neish and Others (1908), 46 Scotch L. R. 250; 
 2 B. W. C. C. 253. Where a man and woman hold 
 themselves out to the world to be married and the 
 man is killed by accident, it seems that the woman and 
 her child may recover compensation upon sufficient 
 evidence being given of a common-law marriage. 
 Fife Coal Co. v. Wallace (1909), 46 Scotch L. R. 727; 
 2 B. W. C. C. 264. 
 
 14. Aliens. 1 
 
 The benefits of the British Columbia Act do not 
 extend to alien dependents residing abroad, where the 
 workman is killed in British Columbia. Krzus v. 
 Crow's Nest Pass Coal Co. (1911), 4 B. W. C. C. 
 469. Where there is no special provision in the Act 
 relative to the residence of dependents, it is no objec- 
 tion to a claim for compensation by dependents that 
 they are alien residents of a foreign country. Varesick 
 v. British Columbia Copper Co. (1906), 12 B. C. 286; 
 1 B. W. C. C. 446. 
 
 16. Inmate of workhouse. 
 
 A person in a workhouse is not necessarily dependent 
 on the earnings of another because that other is legally 
 liable to contribute to the cost of his maintenance. 
 Rees v. Penrikyber Navigation Colliery Co. (1902), 87 
 L. T. 661 ; 5 W. C. C. 117. 
 
 1 The various acts of the States of the Union have special pro- 
 visions on this subject. 
 21
 
 322 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Representative of deceased dependent 
 
 16. Representative of deceased dependent. 
 
 Where a dependent dies without having made claim 
 for compensation under the Act, the legal representa- 
 tives of such dependent may claim compensation as 
 the right to make claim became vested in the dependent 
 at the time of the death of the workman and survived 
 to the legal representatives of the dependent. (House 
 of Lords), United Collieries v. Hendry (1909), 101 L. T. 
 129; A. C. (H. L.) 383; 2 B. W. C. C. 308. Where a 
 widow, of a workman whose death has been caused 
 by accident in his master's service, makes application 
 for compensation and subsequently dies the personal 
 representative of such widow can recover the same 
 compensation that the widow could have recovered 
 even though such representative is not a dependent of 
 the deceased workman. Darlington v. Roscoe & Sons 
 (1910), 96 L. T. 179; 9 W. C. C. 1. The court discusses 
 but does not decide the question of whether or not the 
 representative of the widow could have recovered if the 
 widow had not applied for compensation before her 
 death. The court discussed the Irish case of O'Don- 
 ovan v. Cameron, Swan & Co. (1901), 2 Irish R. 633; 
 wherein it was held that the personal representative of 
 a deceased dependent who had not made application 
 for compensation before her death could not recover, 
 and distinguished the two cases on the ground that in 
 one the dependent had made claim for compensation 
 before her death and in the other she had not made 
 such claim. 
 
 The right of a mother to claim compensation be- 
 cause of the death of her son, upon whom she was 
 dependent, vests in her at the time of her son's death 
 and the personal representatives of the mother can
 
 WHO ARE DEPENDENTS 323 
 
 When compensation to workman terminated before death 
 
 maintain a proceeding for such compensation, even 
 though the mother failed to take proceedings during 
 her lifetime. Hendry v. United Collieries (1908), 45 
 Scotch L. R. 944; 1 B. W. C. C. 289. 
 
 17. Right of dependents independent of that of de- 
 ceased. 
 
 A workman was injured by accident. He gave 
 notice of injury, asking his employers to treat it as a 
 notice under the Employers' Liability and Workmen's 
 Compensation Acts. His employers settled with him 
 for a lump sum, obtaining a receipt releasing them 
 from all liability under the Employers' Liability Act 
 and at common law. The workman died and his 
 dependents claimed under the Workmen's Compensa- 
 tion Act, subject to the deduction of the sum paid under 
 the settlement. The County Court judge found as a 
 fact that there was no bona fide settlement and made 
 an award in favor of the dependents. It was held that 
 the right of the dependents was independent of, and 
 not derived from, that of the deceased, and that they 
 were therefore entitled to recover. Howell v. Bradford 
 & Co. (1911), 104 L. T. 433; 4 B. W. C. C. 203. 
 
 18. Claim by dependents when compensation to 
 workman terminated before death. 
 
 A workman was injured, and received compensation. 
 A memorandum of agreement to pay him compensation 
 was filed, and on an application to review the payments 
 thereunder were terminated. Subsequently the man 
 died and his dependents applied for compensation. It 
 was held that the award terminating the rights of the 
 workman was not a bar to the claim by the dependents. 
 Jobson v. 17. Cory & Sons (1911), 4 B. W. C. C. 284.
 
 324 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 19. Dependents receiving other income because of 
 
 death of workman. 
 
 Moneys coming to dependents on the death of a 
 
 workman do not affect the question of whether or not 
 
 they were dependent upon his earnings at the time of 
 
 his death. Pryce v. Penrikyber Navigation Colliery Co. 
 
 (1901), 85 L. T. 477; 4 W. C. C. 115. 
 
 20. Question of dependency is one of fact. 
 
 "The question of dependency is not a question of 
 law at all. It is purely a question of fact." Main 
 Colliery Co. v. Dames (1900), A. C. 358; 1 W. C. C. 92; 
 2 W. C. C. 108; Hodgson v. Owners of West Stanley 
 Colliery (1910), A. C. (H. L.) 229; 102 L. T. 194; 3 B. 
 W. C. C. 260. Both of the above cases were decided in 
 the House of Lords. 
 
 21. Necessity of administering on estate. 
 
 It is not necessary for a dependent to take out 
 letters of administration to the estate of deceased. 
 Clatworthy v. R. & H. Green (1902), 86 L. T. 702; 4 W. 
 C. C. 152. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "9 (3) The following shall be conclusively pre- 
 sumed to be solely and wholly dependent for support 
 upon a deceased employe": 
 
 " (a) A wife upon a husband. 
 
 " (6) A husband upon a wife upon whose earnings 
 he is partially or wholly dependent at the time of her 
 death. 
 
 " (c) A child or children under the age of eighteen 
 years (or over said age, but physically or mentally
 
 WHO ARE DEPENDENTS 325 
 
 Kansas 
 
 incapacitated from earning), upon the parent with 
 whom he or they are living at the time of the death of 
 such parent, there being no surviving dependent 
 parent. In case there is more than one child thus de- 
 pendent, the death benefit shall be divided equally 
 among them. In all other cases questions of entire or 
 partial dependency shall be determined in accordance 
 with the fact, as the fact may be at the time of the 
 death of the employe", and in such other cases if there 
 is more than one person wholly dependent, the death 
 benefit shall be divided equally among them and per- 
 sons partially dependent, if any, shall receive no part 
 thereof, and if there is more than one person partially 
 dependent, the death benefit shall be divided among 
 them according to the relative extent of their de- 
 pendency. 
 
 " (4) Questions as to who constitute dependents and 
 the extent of their dependency shall be determined as 
 of the date of the death of the employe", and their 
 right to any death benefit shall become fixed as of 
 such time, irrespective of any subsequent change in 
 conditions, and the death benefit shall be directly 
 recoverable by and payable to the dependent or de- 
 pendents entitled thereto or their legal guardians or 
 trustees." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 See 4 a and e, in Chapter VIII, ante, page 214. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 9 (j). 'Dependents' means such members of the 
 workman's family as were wholly or in part dependent
 
 326 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 upon the workman at the time of the accident. And 
 'members of a family' for the purposes of this act 
 means only widow or husband, as the case may be, 
 and children; or if no widow, husband or children, 
 then parents and grandparents, or if no parents or 
 grandparents, then grandchildren; or if no grand- 
 children, then brothers and sisters. In the meaning 
 of this section parents include step-parents, children 
 include step-children, and grandchildren include step- 
 grandchildren, and brothers and sisters include step- 
 brothers and step-sisters, and children and parent 
 include that relation by legal adoption." 
 
 (L. 1911, c. 751) 
 
 "Part II, 7. The following persons shall be con- 
 clusively presumed to be wholly dependent for support 
 upon a deceased employe: 
 
 "(a) A wife upon a husband with whom she lives 
 at the time of his death. 
 
 " (6) A husband upon a wife with whom he lives at 
 the time of her death. 
 
 " (c) A child or children under the age of eighteen 
 years (or over said age, but physically or mentally 
 incapacitated from earning) upon the parent with 
 whom he is or they are living at the time of the death 
 of such parent, there being no surviving dependent 
 parent. In case there is more than one child thus de- 
 pendent, the death benefit shall be divided equally 
 among them. 
 
 "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
 
 WHO ARE DEPENDENTS 327 
 
 Michigan 
 
 be divided equally among them, and persons partly 
 dependent, if an/, 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." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part II, 6. The following persons shall be con- 
 clusively presumed to be wholly dependent for support 
 upon a deceased employe": 
 
 " (a) A wife upon a husband with whom she lives 
 at the time of his death; 
 
 " (6) A husband upon a wife with whom he lives 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 in- 
 capacitated from earning) upon the parent with whom 
 he is or they are living at the time of the death of such 
 parent, there being no surviving parent. In case there 
 is more than one child thus dependent, the death 
 benefit shall be divided equally among them. 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 depend- 
 ency. No person shall be considered a dependent, un- 
 less a member of the family of the deceased employe",
 
 328 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 or bears to him the relation of husban.d or widow, or 
 lineal descendant, or ancestor, or brother, or sister. 
 
 " 7. Questions as to who constitute dependents 
 and the extent of their dependency shall be deter- 
 mined as of the date of the accident to the employe", 
 and their right to any death benefit shall become 
 fixed as of such tune, irrespective of any subsequent 
 change in conditions; and the death benefit shall be 
 directly recoverable by and payable to the dependent 
 or dependents entitled thereto, or their legal guard- 
 ians or trustees. In case of the death of one such 
 dependent his proportion of such compensation shall 
 be payable to the surviving dependents pro rata. 
 Upon the death of all such dependents compensation 
 shall cease. No person shall be excluded as a de- 
 pendent who is a non-resident alien. No dependent 
 of an injured employe" shall be deemed, during the life 
 of such employe", a party in interest to any proceeding 
 by him for the' enforcement of collection of any claim 
 for compensation, nor as respects the compromise 
 thereof by such employe"." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 "'Dependents' means wife, father, mother, hus- 
 band, sister, brother, child or grandchild; provided, 
 that they were wholly or partly dependent upon the 
 earnings of the workman at the time of his death." 
 1. See Chapter II, ante, page 150. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 "Widow, children, or parents resident of this State." 
 See 6, in Chapter VIII, ante, page 221.
 
 WHO ARE DEPENDENTS 329 
 
 Rhode Island 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 See Chapter VIII, ante, page 222. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 "29. Benefits to whom paid. The benefits, in 
 case of death, shall be paid to such one or more of the 
 dependents of the decedent, for the benefit of all the 
 dependents, as may be determined by the Board, 
 which may apportion the benefits among the depend- 
 ents in such manner as it may deem just and equitable. 
 Payment to a dependent subsequent in right may be 
 made, if the Board deem proper, and shall operate to 
 discharge all other claims therefor. 
 
 "30. The dependent or person to whom benefits 
 are paid shall apply the same to the use of the several 
 beneficiaries thereof according to their respective 
 claims upon the decedent for support, in compliance 
 with the finding and direction of the Board." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 7. Dependents. The following persons 
 shall be conclusively presumed to be wholly de- 
 pendent for support upon a deceased employe": 
 
 "(a) A wife upon a husband with whom she lives 
 or upon whom she is dependent at the time of his 
 death. 
 
 " (6) A husband upon a wife with whom he lives or 
 upon whom he is dependent at the time of her death. 
 
 "(c) A child or children, including adopted and
 
 330 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 stepchildren, under the age of eighteen years, or over 
 said age, but physically or mentally incapacitated 
 from earning, upon the parent with whom he is or 
 they are living or upon whom he or they are dependent 
 at the time of the death of such parent, there being no 
 surviving dependent parent. In case there is more 
 than one child thus dependent, the compensation 
 thereunder shall be divided equally among them. 
 
 "In all other cases questions of entire or partial 
 dependency shall be determined in accordance with 
 the fact as the fact may have been at the time of the 
 injury. In such other cases, if there is more than one 
 person wholly dependent, the compensation shall be 
 divided equally among them, and persons partly de- 
 pendent, if any, shall receive no part thereof during 
 the period in which compensation is paid to persons 
 wholly dependent. If there is no one wholly depend- 
 ent and more than one person partly dependent, the 
 compensation shall be divided among them according 
 to the relative extent of their dependency. 
 
 " 8. Dependents how determined. No person shall 
 be considered a dependent unless he is a member of 
 the employees family or next of kin wholly or partly 
 dependent upon the wages, earnings or salary of the 
 employe" for support at the time of the injury." 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 "3. * * * Dependent means any of the follow- 
 ing named relatives of a workman whose death results 
 from any injury and who leaves surviving no widow, 
 widower, or child under the age of sixteen years, viz. : 
 invalid child over the age of sixteen years, daughter, 
 between sixteen and eighteen years of age, father,
 
 WHO ARE DEPENDENTS 331 
 
 Wisconsin 
 
 mother, grandfather, grandmother, step-father, step- 
 mother, grandson, granddaughter, step-son, step- 
 daughter, brother, sister, half-sister, half-brother, 
 niece, nephew, who, at the time of the accident, are 
 dependent, in whole or in part, for their support upon 
 the earnings of the workman. Except where other- 
 wise provided by treaty, aliens, other than father or 
 mother, not residing within the United States at the 
 time of the accident, are not included. 
 
 "Beneficiary means a husband, wife, child or de- 
 pendent of a workman, in whom shall vest a right to 
 receive payment under this act. 
 
 "Invalid means one who is physically or mentally 
 incapacitated from earning. 
 
 "The word 'child/ as used in this act, includes a 
 posthumous child, a child legally adopted prior to 
 the injury, and an illegitimate child legitimated prior 
 to the injury." 
 
 " 5. (i) A husband or wife of an injured workman, 
 living in a state of abandonment for more than one 
 year at the time of the injury or subsequently, shall 
 not be a beneficiary under this act." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-10. (3.) The following shall be conclusively 
 presumed to be solely and wholly dependent for sup- 
 port upon a deceased employe : 
 
 " (a) A wife upon a husband with whom she is living 
 at the time of his death. 
 
 " (6) 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 eighteen 
 years (or over said age, but physically or mentally
 
 332 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 incapacitated from earning), upon the parent with 
 whom he or they are living at the time of the death of 
 such parent, there being no surviving dependent 
 parent. In case there is more than one child thus de- 
 pendent, the death benefit shall be divided equally 
 among them. 
 
 "In all other cases questions of entire or partial 
 dependency shall be determined in accordance with 
 the fact, as the fact may be at the time of the death of 
 the employe"; 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 
 partially dependent, if any, shall receive no part 
 thereof; and if there is more than one person partially 
 dependent, the death benefit shall be divided among 
 them according to the relative extent of their depend- 
 ency. 
 
 "4. No person shall be considered a dependent un- 
 less a member of the family of the deceased employe 1 , 
 or bears to him the relation of husband or widow, or 
 lineal descendant, or ancestor, or brother, or sister. 
 
 "5. 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 their 
 right to any death benefit shall become fixed as of such 
 time, irrespective of any subsequent change in con- 
 ditions; and the death benefit shall be directly recover- 
 able by and payable to the dependent or dependents 
 entitled thereto or their legal guardians or trustees; 
 provided that in case of the death of a dependent 
 whose right to a death benefit has thus become fixed, 
 so much of the same as is then unpaid shall be re- 
 coverable by and payable to his personal representa- 
 tive in gross. No person shall be excluded as a de- 
 pendent who is a non-resident alien.
 
 WHO ARE DEPENDENTS 333 
 
 Wisconsin 
 
 "6. No dependent of an injured employe" shall be 
 deemed, during the life of such employe", a party in 
 interest to any proceeding by him for the enforcement 
 or collection of any claim for compensation, nor as 
 respects the compromise thereof by such employe"."
 
 CHAPTER XVII 
 
 DEFINITIONS NOT OTHERWISE CLASSIFIED 
 
 Page Page 
 
 CALIFORNIA 334 NEW HAMPSHIRE 339 
 
 ILLINOIS 334 NEW JERSEY 339 
 
 KANSAS 335 OHIO 340 
 
 MASSACHUSETTS 337 RHODE ISLAND 340 
 
 MICHIGAN 339 WASHINGTON 341 
 
 NEVADA 339 WISCONSIN 341 
 
 "It ought to be remembered that the Workmen's 
 Compensation Acts are expressed not in technical but 
 in popular language, and ought to be construed not in 
 a technical but in a popular sense." Smith v. Coles 
 (1905), 2 K. B. 827; 8 W. C. C. 116; Rogers v. Cardiff 
 Corporation, 8 W. C. C. 51. "We have been told by 
 the House of Lords to give the terms used in the Work- 
 men's Compensation Act, their practical, popular mean- 
 ing, and not to put a technical construction on them." 
 Adams v. Shaddock (1905), 2 K. B. 859; 8 W. C. C. 58. 
 
 CALIFORNIA 
 (L. 1911, e. 399) 
 
 For definitions of employers and employe's see Chap- 
 ter II, ante, page 132, and 4 and 7 of the Act in that 
 Chapter. 
 
 ILLINOIS 
 (L. 1911, c. 000) 
 
 "21. The term 'employe' as used in this Act shall 
 be held to include only such persons as may be exposed 
 334
 
 DEFIOTTIONS NOT OTHERWISE CLASSIFIED 335 
 Kansas 
 
 to the necessary hazards of carrying on any employ- 
 ment or enterprise referred to in Section 2 of this Act. 
 Persons whose employment is of a casual nature and 
 who are employed otherwise than for the purpose of 
 the employer's trade or business, are not included in 
 the foregoing definition. 
 
 " 22. Section 21 shall not be construed to include 
 any employe" engaged in any work of an incidental 
 character unconnected with the dangers necessarily 
 involved in carrying on any employment or enterprise 
 referred to in Section 2, or in any work of a clerical or 
 administrative nature which does not expose the em- 
 ploye to the inherent hazards of any such employment 
 or enterprise. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "9. Definitions. In this Act, unless the context 
 otherwise requires. 
 
 "(a) 'Railway' includes street railways and in- 
 terurbans; and 'employment on .railways' includes 
 work in depots, power houses, round-houses, machine 
 shops, yards, and upon the right of way, and in the 
 operation of its engines, cars and trains, and to em- 
 ployes of express companies while running on rail- 
 road trains. 
 
 "(6) 'Factory' means any premises wherein power 
 is used in manufacturing, making, altering, adapt- 
 ing, ornamenting, finishing, repairing or renovating 
 any article or articles for the purpose of trade or gain 
 or of the business carried on therein, including ex- 
 pressly any brick yard, meat-packing house, foundry, 
 smelter, oil refinery, lime burning plant, steam heat- 
 ing plant, electric lighting plant, electric power plant 
 and water power plant, powder plant, blast furnace,
 
 336 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 paper mill, printing plant, flour mill, glass factory, 
 cement plant, artificial gas plant, machine or repair 
 shop, salt plant, and chemical manufacturing plant. 
 
 "(e) 'Mine' means any opening in the earth for 
 the purpose of extracting any minerals, and all under- 
 ground workings, slopes, shafts, galleries and tun- 
 nels, and other ways, cuts and openings connected 
 therewith, including those in the course of being 
 opened, sunk or driven; and includes all the appurte- 
 nant structures at or about the openings of the mine, 
 and any adjoining adjacent work place where the 
 material from a mine is prepared for use or ship- 
 ment. 
 
 " (d) ' Quarry ' means any place, not a mine, where 
 stone, slate, clay, sand, gravel or other solid material 
 is dug or otherwise extracted from the earth for the 
 purpose of trade or bargain or of the employer's 
 trade or business. 
 
 "(e) 'Electrical work' means any kind of work 
 in or directly connected with the construction, in- 
 stallation, operation, alteration, removal or repair 
 of wires, cables, switchboards or apparatus, used 
 for the transmission of electrical current. 
 
 "(/) 'Building work' means any work in the 
 erection, construction, extension, decoration, al- 
 teration, repair or demolition of any building or 
 structural appurtenance. 
 
 "(0) 'Engineering work' means any work in the 
 construction, alteration, extension, repair or demoli- 
 tion of a railway (as hereinbefore defined) bridge, 
 jetty, dike, dam, reservoir, underground conduit, 
 sewer, oil or gas well, oil tank, gas tank, water tower, 
 or water works (including standpipes or mains) any 
 caisson work or work in artificially compressed air, 
 any work in dredging, pile driving, moving build-
 
 DEFINITIONS NOT OTHERWISE CLASSIFIED 337 
 
 ings, moving safes, or in laying, repairing or removing, 
 underground pipes and connections, the erection, 
 installing, repairing, or removing of boilers, furnaces, 
 engines and power machinery, (including belting 
 and other connections) and any work in grading or 
 excavating where shoring is necessary or power 
 machinery or blasting powder, dynamite or other 
 high explosives is in use (excluding mining and quarry- 
 ing). 
 
 "(h) 'Employer' includes any person or body of 
 persons corporate or unincorporate, and the legal 
 representative of a deceased employer or the re- 
 ceiver or trustee of a person, corporation, association 
 or partnership. 
 
 "(i) 'Workman' means any person who has en- 
 tered into the employment of or works under contract 
 of service or apprenticeship with an employer, but 
 does not include a person who is employed otherwise 
 than for the purpose of the employer's trade or 
 business. Any reference to a workman who has been 
 injured shall, where the workman is dead, include a 
 reference to his dependents, as hereinafter defined, 
 or to his legal representative, or where he is a minor 
 or incompetent, to his guardian." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part V, 2. The following words and phrases, 
 as used in this Act, shall, unless a different meaning 
 is plainly required by the context, have the following 
 meaning : 
 
 "'Employer' shall include the legal representative 
 of a deceased employer. 
 
 "'Employe' shall include every person in the serv- 
 22
 
 338 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 ice of another under any contract of hire, express 
 or implied, oral or written, except one whose employ- 
 ment is but casual, or is not in the usual course of the 
 trade, business, profession or occupation of his em- 
 ployer. Any reference to an employe" who has been 
 injured shall, when the employe" is dead, also include 
 his legal representatives, dependents and other per- 
 sons to whom compensation may be payable. 
 
 '" Dependents' shall mean members of the em- 
 ploye^s family or next of kin who were wholly or 
 partly dependent upon the earnings of the employe" 
 for support at the time of the injury. 
 
 "'Average weekly wages' shall mean the earnings 
 of the injured employ 6 during the period of twelve 
 calendar months immediately preceding the date of 
 injury, divided by fifty-two; but if the injured em- 
 ploye" lost more than two weeks' time during such 
 period then the earnings for the remainder of such 
 twelve calendar months shall be divided by the num- 
 ber of weeks remaining after the time so lost has been 
 deducted. Where, by reason of the shortness of the 
 time during which the employe" has been in the em- 
 ployment of his employer, or the nature or terms of 
 the employment, it is impracticable to compute the 
 average weekly wages, as above defined, regard may 
 be had to the average weekly amount which, during 
 the twelve months previous to the injury, was being 
 earned by a person in the same grade employed at 
 the same work by the same employer; or, if there is 
 no person so employed, by a person in the same grade 
 employed in the same class of employment and in the 
 same district. 
 
 "'Association' shall mean the Massachusetts Em- 
 ploye's Insurance Association. 
 
 "'Subscriber' shall mean an employer who has
 
 DEFINITIONS NOT OTHERWISE CLASSIFIED 339 
 
 New Jersey 
 
 become a member of the association by paying a 
 year's premium in advance and receiving the receipt 
 of the association therefor, provided that the associa- 
 tion holds a license issued by the insurance com- 
 missioner as provided in Part IV, section twelve." 
 
 MICHIGAN 
 (L. 1912, No. 3) 
 See Chapters II and XVI. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 As to "Employer," "Workmen" and Dependents, 
 see 2, in Chapter II, ante, page 151. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 "Dependents," "Widow, children and parents resi- 
 dent of this State." See 6, in Chapter VIII, ante, 
 page 221. 
 
 There are no other definitions in the New Hampshire 
 
 Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "SECTION III 
 
 "GENERAL PROVISIONS 
 
 "23. What constitutes willful negligence. For the 
 purposes of this Act, willful negligence shall consist 
 of (1) deliberate act or deliberate failure to act, or 
 (2) such conduct as evidences reckless indifference
 
 340 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 to safety, or (3) intoxication, operating as the proxi- 
 mate cause of injury. 
 
 "Use of certain words. Wherever in this act the 
 singular is used the plural shall be included; where the 
 masculine gender is used, the feminine and neuter 
 shall be included. 
 
 "Synonyms. Employer is declared to be synony- 
 mous with master and includes natural persons, part- 
 nerships and corporations; employe" is synonymous 
 with servant and includes all natural persons who 
 perform service for another for financial consideration, 
 exclusive of casual employments. 
 
 "As to amputations. Amputation between the 
 elbow and the wrist shall be considered as the equiva- 
 lent of the loss of a hand, and amputation between 
 trie knee and the ankle shall be considered as the 
 equivalent of the loss of a foot." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 The Ohio Act contains no definitions. 
 
 RHODE ISLAND 
 (L. 1912, c. 000) 
 "ARTICLE V 
 
 '' MISCELLANEOUS PROVISIONS 
 
 " 1. In this act, unless the context otherwise 
 requires : 
 
 "(a) 'Employer' includes any person, co-partner- 
 ship, corporation or voluntary association, and the 
 legal representative of a deceased employer. 
 
 "(6) 'Employe"' means any person who has en-
 
 DEFINITIONS NOT OTHERWISE CLASSIFIED 341 
 Wisconsin 
 
 tered into the employment of, or works under con- 
 tract of service or apprenticeship with, an employer, 
 and whose remuneration does not exceed eighteen 
 hundred dollars a year. It does not include a person 
 whose employment is of a casual nature, and who is 
 employed otherwise than for the purpose of the em- 
 ployer's trade or business. Any reference to an em- 
 ploye" who has been injured shall, where the employe" 
 is dead, include a reference to his dependents as here- 
 inbefore denned, or to his legal representative, or, 
 where he is a minor, or incompetent, to his conservator 
 or guardian." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 See 2 and 3, in Chapter II, ante, page 164. See 
 5 in Chapter IX, ante, page 269. See 5 (i) in Chap- 
 ter XVI, ante, page 331. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 For definition of " employe's" who come within the 
 provisions of the statute see Chapter II, ante, page 170.
 
 CHAPTER XVIII 
 
 GARNISHMENT OR SEIZURE OF AWARDS FOR DEBT, 
 AND ASSIGNMENT OF AWARDS 
 
 Page Page 
 
 CALIFORNIA 342 NEW HAMPSHIRE 343 
 
 ILLINOIS 342 NEW JERSEY 344 
 
 KANSAS 343 OHIO 344 
 
 MASSACHUSETTS 343 RHODE ISLAND 344 
 
 MICHIGAN , . . . 343 WASHINGTON 344 
 
 NEVADA 343 WISCONSIN 345 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "22. No claim for compensation under this Act 
 shall be assignable before payment, but this provision 
 shall not affect the survival thereof ; nor shall any claim 
 for compensation, or compensation awarded, adjudged 
 or paid, be subject to be taken for the debts of the 
 party entitled thereto." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 "11. * * * the payments due under such com- 
 pensation provisions shall not be subject to attach- 
 ment, levy, execution, garnishment or satisfaction 
 of debts, except to the same extent and in the same 
 manner as wages or earnings for personal service are 
 now subject to attachment, levy, execution, garnish- 
 ment or satisfaction of debts under the laws of this 
 State, and shall not be assignable * * * " 
 342
 
 GARNISHMENT AND ASSIGNMENT OF AWARDS 343 
 
 New Hampshire 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 15. The payments due under this act, as well as 
 any judgment obtained thereunder, shall not be as- 
 signable or subject to levy, execution or attachment, 
 except for medicine, medical attention and nursing." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 21. No payment under this act shall be 
 assignable or subject to attachment, or be liable in 
 any way for any debts." 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part II, 21. No payment under this act shall be 
 assignable or subject to attachment or garnishment, 
 or be held liable in any way for any debts." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision on this subject in the Nevada 
 Act. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 " 10. * * * Weekly payments due under this 
 act shall not be assignable or subject to levy, execu- 
 tion, attachment or satisfaction of debts. Any right to 
 receive compensation under this act shall be extin- 
 guished by the death of the person entitled thereto."
 
 344 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 " II, paragraph 22 in Part 22. * * * Claims not 
 assignable. Claims or payments due under this act 
 shall not be assignable, and shall be exempt from all 
 claims of creditors and from levy, execution or at- 
 tachment." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 "35. Benefits creditors. Benefits before payment 
 shall be exempt from all claims or creditors and 
 from any attachment or execution, and shall be paid 
 only to such employe's or their dependents." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 23. Claims not assignable. No claims 
 for compensation under this act, or under any al- 
 ternative scheme permitted by Article IV of this act, 
 shall be assignable, or subject to attachment, or liable 
 in any way for any debts." 
 
 Article IV provides for an alternative scheme. See 
 Chapter XXVII. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 10. Exemption of Awards. No money paid or 
 payable under this act out of the accident fund shall, 
 prior to issuance and delivery of the warrant therefor, 
 be capable of being assigned, charged, nor ever be
 
 GARNISHMENT AND ASSIGNMENT OF AWARDS 345 
 
 Wisconsin 
 
 taken in execution or attached or garnished, nor shall 
 the same pass to any other person by operation of law. 
 Any such assignment or charge shall be void." 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 " 2394-23. No claim for compensation under 
 this act shall be assignable before payment, but this 
 provision shall not affect the survival thereof; nor 
 shall any claim for compensation, or compensation 
 awarded, adjudged, or paid, be subject to be taken 
 for the debts of the party entitled thereto.."
 
 CHAPTER XIX 
 
 ATTORNEY'S FEES l 
 
 Page Page 
 
 CALIFORNIA 346 NEW HAMPSHIRE 347 
 
 ILLINOIS 346 NEW JERSEY 348 
 
 KANSAS 346 OHIO 348 
 
 MASSACHUSETTS 347 RHODE ISLAND 348 
 
 MICHIGAN 347 WASHINGTON 349 
 
 NEVADA 347 WISCONSIN 349 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 The California Act is silent on the question of at- 
 torney's fees. 
 
 ILLINOIS 
 (L. 1911, c. 000) 
 
 " 11. * * * No claim of any attorney-at-law 
 for services in securing a recovery under this Act shall 
 be an enforceable lien thereon unless the amount of 
 the same be approved in writing by a judge of a court 
 of record which approval may be made in term, time 
 or vacation. * * * * " 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 "15. * * * no claim of any attorney-at-law for 
 services rendered in securing such indemnity or com- 
 pensation or judgment shall be an enforceable lien 
 thereon, unless the same has been approved in writing 
 
 1 For fees and costs see Chapter XXXI, post, page 550. 
 346
 
 ATTORNEY'S FEES 347 
 
 New Hampshire 
 
 by the judge of the court where said case was tried; 
 but if no trial was had then by any judge of the dis- 
 trict court of this state to whom such matter has been 
 regularly submitted, on due notice to the party or 
 parties in interest of such submission." 
 
 "38. Attorney's liens. Contingent fees of at- 
 torneys for services and proceedings under this act 
 shall in every case be subject to approval by the 
 court." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part III, 13. Fee of attorneys and physicians for 
 services under this act shall be subject to the approval 
 of the industrial accident board." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part III, 10. * * * The fees and the payment 
 thereof of all attorneys and physicians for services 
 under this act shall be subject to the approval of the 
 Industrial Accident Board." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 "9. * * * The prevailing party in any action, 
 brought under the provisions of this Act, shall be en- 
 titled to his costs of suit and reasonable attorney's 
 fees." 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 " 11. No claim of any attorney-at-law for any con- 
 tingent interest in any recovery under this act for 
 services in securing such recovery or for disbursements
 
 348 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 shall be an enforceable lien on such recovery, unless 
 the account of the same be approved in writing by a 
 justice of the Superior Court, or, in case the same be 
 tried in any court, by the justice presiding at such 
 trial." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "I-6. Claim against compensation. Proviso. No 
 claim for legal services or disbursements pertaining 
 to any demand made or suit brought under the pro- 
 visions of this act shall be an enforceable lien against 
 the amount paid as compensation, unless the same be 
 approved in writing by the judge or justice presiding 
 at the trial, or in case of settlement without trial, by 
 the judge of the circuit court of the district in which 
 such issue arose; provided, that if notice in writing be 
 given the defendant of such claim for legal services or 
 disbursements, the same shall be a lien against the 
 amount paid as compensation, subject to determina- 
 tion of the amount and approval hereinbefore pro- 
 vided." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 On appeals to the court from awards by the board 
 "the costs of such proceeding, including a reasonable 
 attorney's fee to the claimant's attorney to be fixed 
 by the trial judge, shall be taxed against the unsuc- 
 cessful party." 36. 
 
 RHODE ISLAND 
 
 (L. 1911, c. 000) 
 
 "Art. II, 3. Contingent fees. Contingent fees of 
 attorneys for services under this act shall be subject 
 to the approval of the superior court."
 
 ATTORNEY'S FEES 349 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 In cases of appeal for a court review of an award, "It 
 shall be unlawful for any attorney engaged in any such 
 appeal to charge or receive any fee therein in excess of 
 a reasonable fee, to be fixed by the court in the case." 
 20. See Chapter XXV, post, page 464. 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 " 2394-22. * * * unless previously authorized by 
 the board, no lien shall be allowed, nor any contract 
 be enforceable, for any contingent attorney's fee for 
 the enforcement or collection of any claim for com- 
 pensation where such contingent fee, inclusive of all 
 taxable attorney's fees paid or agreed to be paid for 
 the enforcement or collection of such claim, exceeds 
 ten per cent of the amount at which such claim shall 
 be compromised, or of the amount awarded, adjudged, 
 or collected."
 
 CHAPTER XX 
 
 SUBROGATION BY AND AGAINST EMPLOYERS, INSUR- 
 ANCE COMPANIES AND OTHERS 
 
 Page Page 
 
 CALIFORNIA 352 NEW HAMPSHIRE 355 
 
 ILLINOIS 352 NEW JERSEY 356 
 
 KANSAS 353 OHIO 356 
 
 MASSACHUSETTS 354 RHODE ISLAND 356 
 
 MICHIGAN 354 WASHINGTON 357 
 
 NEVADA 355 WISCONSIN 357 
 
 There is such an entire lack of harmony in the va- 
 rious acts on the subject of this chapter that no general 
 rules can be laid down. A tendency is shown, however, 
 to give to the employer the right of subrogation against 
 a third person actually causing the injury to the em- 
 ployer's workman for which injury the employer has 
 been called upon to pay compensation. A few of the 
 British cases found to be applicable have been appended 
 below. 
 
 Where a workman employed by a subcontractor 
 claims and secures compensation from the principal 
 contractor such principal contractor can recover in- 
 demnity from the subcontractor, and in such an action 
 an insurance company which has insured the sub- 
 contractor can be brought in as a party defendant. 
 Evans v. Cook, Lancashire & Yorkshire Accident Ins. 
 Co., Third Parties (1904), 7 W. C. C. 41. 
 
 Where a workman is injured by reason of a breach 
 by two fellow workmen of certain regulations made by 
 
 350
 
 SUBROGATION 351 
 
 Subrogation 
 
 the Secretary of State, under the Factory and Work- 
 shop Act, such fellow workmen are liable to indemnify 
 the employers under the Workmen's Compensation 
 Act for the amount which the employers are compelled 
 to pay to the injured workman, as such fellow workmen 
 are persons other than the employer within the mean- 
 ing of the Compensation Act. Lees and Sykes v. Dun- 
 kerley Brothers (1910), 103 L. T. 467; 4 B. W. C. C. 115. 
 
 The owners of ships employed the defendants to 
 draw coal from nearby railway tracks to a tip on a 
 dock and load it on to the ships. One of the drivers 
 employed by the defendants tripped on the track and 
 was injured by the car his team was hauling. He 
 claimed and secured an award of compensation against 
 the plaintiff, the shipowner. The latter sued the de- 
 fendant, the employer of the workman, for indemnity, 
 and judgment was awarded in favor of the ship- 
 owners. Pacific Navigation Co. v. Pugh & Son (1907), 
 23 T. L. R. 622 ; 9 W. C. C. 39. 
 
 The driver of a motor car, when nearing a cart and 
 horse, knowing that his hooter was out of order, slowed 
 down to six miles an hour. When abreast of the cart 
 the horse became frightened and bolted. The driver 
 was thrown and fatally injured. The dependent 
 claimed compensation from the master, who brought 
 in the driver of the motor car as a third party. The 
 County Court judge held that the damage to the 
 hooter was not the cause of the accident, and that it 
 was not negligence on the part of the driver of the car 
 to continue running on the road with the hooter silent. 
 The widow of the deceased could not therefore have 
 maintained an action against the owners of the motor 
 car for the loss of her husband, and he accordingly
 
 352 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 dismissed the master's claim for indemnity. On appeal 
 it was held that there was evidence to support the 
 County Court judge's findings of fact and that the 
 mere breach of regulations made under the Motor Act 
 was not necessarily evidence of negligence. Lankester 
 v. Miller-Hetherington (1910), 4 B. W. C. C. 80. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "26. The making of a lawful claim against an 
 employer for compensation under this act for the 
 injury or death of his employ 6 shall operate as an as- 
 signment of any assignable cause of action in tort 
 which the employe" or his personal representative may 
 have against any other party for such injury or death, 
 and such employer may enforce in his own name the 
 liability of such other party." 
 
 / 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 *' 16. Any person who shall become entitled to 
 compensation under the provisions of this Act, shall, 
 in the event of his inability to recover such compensa- 
 tion from the employer on account of his insolvency, 
 be subrogated to all the rights of such employer against 
 any insurance company or association which may have 
 insured such employer, against loss growing out of 
 the compensation required by the provisions of this 
 Act to be paid by such employer, and in such case only, 
 a payment of the compensation that has accrued to 
 the person entitled thereto in accordance with the 
 provisions of this Act, shall relieve such insurance 
 company from such liability."
 
 SUBROGATION 353 
 
 Kansas 
 
 " 17. Where the injury for which compensation is 
 payable under this Act was caused under circum- 
 stances creating a legal liability in some person, other 
 than the employer, to pay damages in respect thereof : 
 
 " (a) The employe" or beneficiary may take proceed- 
 ings both against that person to recover damages and 
 against the employer for compensation, but the 
 amount of the compensation which he is entitled to 
 under this Act shall be reduced by the amount of dam- 
 ages recovered. 
 
 "(6) If the employe or beneficiary has recovered 
 compensation under this Act, the employer by whom 
 the compensation was paid or the person who has been 
 called upon to pay the indemnity under Sections 4 
 and 5 of this Act, may be entitled to indemnity from 
 the person so liable to pay damages as aforesaid, and 
 shall be subrogated to the rights of the employe" to 
 recover damages therefor." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "The principal contractor who pays compensation 
 voluntarily to a workman of a subcontractor shall 
 have the right to recover over against the subcon- 
 tractor." 4, (/). See remainder of this section in 
 Chapter III, ante, page 183. 
 
 See also 34 as to employe's' right to subrogation 
 against an insurance company, in Chapter XXXIII, 
 post, page 562. 
 
 "5. Remedies both against employer and stranger. 
 Where the injury for which compensation is payable 
 under this act was caused under circumstances creat- 
 ing a legal liability against some person other than the 
 employer to pay damages in respect thereof, (a) The 
 23
 
 354 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 workman may take proceedings against that person 
 to recover damages and against any person liable to 
 pay compensation under this act for such compensa- 
 tion, but shall not be entitled to recover both damages 
 and compensation; and (6) If the workman has re- 
 covered compensation under this act, the person by 
 whom the compensation was paid, or any person who 
 has been called on to indemnify him under the sec- 
 tion of this act relating to subcontracting, shall be 
 entitled to indemnity from the person so liable to pay 
 damages as aforesaid, and shall be subrogated to the 
 rights of the workman to recover damages therefor." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part III, 15. Where the injury for which com- 
 pensation is payable under this act was caused under 
 circumstances creating a legal liability in some person 
 other than the subscriber to pay damages in respect 
 thereof, the employe" may at his option proceed either 
 at law against that person to recover damages, or 
 against the association for compensation under this 
 act, but not against both; and if compensation be 
 paid under this act, the association may enforce in 
 the name of the employe", or in its own name and for 
 its own benefit, the liability of such other person." 
 
 For rights and liabilities of principal and subcon- 
 tractors see Part III, 17, reprinted in Chapter III, 
 ante, page 183. 
 
 MICHIGAN 
 
 (L. 1911, c. 000) 
 
 "Part III, 15. Where the injury for which com- 
 pensation is payable under this act was caused under
 
 SUBROGATION 355 
 
 New Hampshire 
 
 circumstances creating a legal liability in some person 
 other than the employer to pay damages in respect 
 thereof, the employe* may at his option proceed either 
 at law against that person to recover damages, or 
 against the employer for compensation under this act, 
 but not against both, and if compensation be paid 
 under this act the employer may enforce for his bene- 
 fit or for that of the insurance company carrying such 
 risk, or the commissioner of insurance, as the case 
 may be, the liability of such other person." 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 " 13. The making of a lawful claim against an 
 employer for compensation under this act for the in- 
 jury or death of his employ 4 shall operate as an assign- 
 ment of any assignable cause of action in tort which 
 the employe* or his personal representative may have 
 against any other party for such injury or death, and 
 such employer may enforce in his own name the lia- 
 bility of such other party." 
 
 See also 10, in Chapter III, ante, page 184. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 Any employer to take advantage of the provisions 
 of the Act must either satisfy the Commissioner of 
 Labor that he is of sufficient financial ability to comply 
 with the Act, or must file a bond "in such form and 
 amount as the Commissioner may prescribe." This 
 bond may be enforced by the Commissioner of Labor 
 "for the benefit of all persons to whom such employer 
 may become liable under this Act in the same manner
 
 356 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 as probate bonds are enforced." 3. See Chapter II, 
 ante, page 155. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 There is no subrogation provision in the New Jersey 
 Act. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 The Ohio Act contains no provision on the subject 
 of this chapter. 
 
 RHODE ISLAND 
 
 (L. 1911, c. 000) 
 
 "Art. Ill, 21. Liability of other than employer. 
 Where the injury for which compensation is payable 
 under this act was caused under circumstances creat- 
 ing a legal liability in some person other than the 
 employer to pay damages in respect thereof, the em- 
 ploye may take proceedings both against that person 
 to recover damages and against any person liable to 
 pay compensation under this act for such compensa- 
 tion, but shall not be entitled to receive both damages 
 and compensation; and if the employe has been paid, 
 compensation under this act, the person by whom the 
 compensation was paid shall be entitled to indemnity 
 from the person so liable to pay damages as aforesaid, 
 and, to the extent of such indemnity, shall be sub- 
 rogated to the rights of the employe* to recover dam- 
 ages therefor."
 
 SUBROGATION 357 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 The Washington Act contains no provision on this 
 subject. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 " 2394-25. The making of a lawful claim against 
 an employer for compensation under this act for the 
 injury or death of his employe" shall operate as an as- 
 signment of any cause of action in tort which the 
 employe" or his personal representative may have 
 against any other party for such injury or death; and 
 such employer may enforce in his own name the lia- 
 bility of such other party."
 
 CHAPTER XXI 
 
 NOTICE OF CLAIM UNDER ACT; WHEN REQUIRED; 
 HOW SERVED; FORM OF NOTICE 
 
 Page 
 
 1. Introduction 358 
 
 2. Notice by one dependent does not enure to benefit of another 359 
 
 3. Sufficiency of claim for compensation 359 
 
 4. Failure to give notice; lack of prejudice; burden of proof. . . 360 
 
 5. Prejudice by failure of notice; omission of notice to in- 
 
 surance company by employer 362 
 
 6. Sufficient excuse for failure to give notice 362 
 
 7. Ignorance of law not a "mistake" excusing giving of notice 362 
 
 8. Disability not caused until some time after accident 363 
 
 9. Waiver of notice by paying compensation 363 
 
 Page Page 
 
 CALIFORNIA 363 NEW HAMPSHIRE 370 
 
 ILLINOIS 364 NEW JERSEY 371 
 
 KANSAS 365 OHIO 372 
 
 MASSACHUSETTS 366 RHODE ISLAND 372 
 
 MICHIGAN 368 WASHINGTON 374 
 
 NEVADA 369 WISCONSIN 375 
 
 1. Introduction. 
 
 All the state laws contain provisions requiring notice 
 to be given by the employe", or his dependents, of an 
 accident and a claim for compensation. Speaking 
 generally these provisions are very liberal in excusing 
 technical defects in such notices. Nevertheless there 
 must be a substantial compliance with the provisions 
 of the statutes or the right to compensation may be 
 forever lost. 
 
 358
 
 NOTICE OF CLAIM 359 
 
 Sufficiency of claim for compensation 
 
 2. Notice by one dependent does not enure to bene- 
 
 fit of another. 
 
 The father of a workman killed by accident com- 
 menced an action for damages against his son's em- 
 ployer, and on the failure of this action asked for com- 
 pensation to be assessed in accordance with the Act. 
 The mother and sisters thereupon also claimed com- 
 pensation in the proceedings by the father, as de- 
 pendents. They had made no claim previously and 
 much more than six months had passed since the death. 
 It was held that the right given under 1 (4) of the 
 Act was a personal privilege to the one who brought the 
 action, and that the six months for claim having ex- 
 pired, the mother and sisters were not entitled to com- 
 pensation. Kyle v. M'Gintys (1911), 48 Scotch L. R. 
 474 ; 4 B. W. C. C. 389. 
 
 3. Sufficiency of claim for compensation. 
 
 The wife of an injured workman received from the 
 employer her husband's full wages for several weeks 
 after the accident. The employer then refused to pay 
 the wages any longer and the wife asked him if, as he 
 refused to compensate her husband, whether he would 
 compensate her and her children. It was held that 
 there was no evidence upon which the County Court 
 judge could find that a claim for compensation had 
 been made as required by 2 (1) of the Act. Johnson 
 v. Wootton (1911), 4 B. W. C. C. 258. A workman was 
 injured on July 12th. He saw his employer the same 
 evening but did not mention the accident. He alleged 
 that on the following day he sent notice by messenger. 
 On July 23d he again saw his employer, but said 
 nothing about compensation. He alleged that on
 
 360 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Failure of notice 
 
 August 6th he again sent notice by registered post. 
 On August 12th a solicitor sent formal notice on his 
 behalf. The employer denied having received any but 
 the last notice. The County Court judge found that 
 the notice of the accident had not been given as soon 
 as practicable after the happening thereof, and that 
 it had not been established that the employer had not 
 been prejudiced by the delay. It was held on appeal 
 that there was evidence to support the finding. Leach 
 v. Hickson (1911), 4 B. W. C. C. 153. An injured 
 workman was waited upon by an agent of an insurance 
 company, with whom his employers were insured, who 
 endeavored to get him to accept compensation, and 
 by a tout to a lawyer, who advised him not to accept 
 compensation, but to claim damages. The workman 
 eventually decided not to accept compensation, and 
 put the matter into the lawyer's hands, who, however, 
 carried nothing to a conclusion,, with the result that 
 the six months allowed by the Act for making a claim 
 expired. In an arbitration at the instance of the work- 
 man the arbitrator found that the workman was barred 
 from prosecuting the claim, and dismissed the applica- 
 tion. It was held by the Court of Sessions of Scotland 
 that as no claim had been made within the six months, 
 the application had been rightly dismissed. Devons v. 
 Alexander Anderson and Sons (1910), 48 Scotch L. R. 
 187; 4 B. W. C. C. 354. A mere notice of injury is not 
 a claim for compensation or a proceeding to recover 
 compensation. Perry v. Clements (1901), 3 W. C. C. 56. 
 
 4. Failure to give notice; lack of prejudice; burden 
 of proof. 
 
 Where no notice has been given the onus lies on the
 
 NOTICE OF CLAIM 361 
 
 Failure of notice 
 
 applicant for compensation to show lack of prejudice. 
 Hughes v. Coed Talon Colliery Co., 100 L. T. 555; 2 B. 
 W. C. C. 159; Tibbs v. Watts, Blake, Bearne & Co., 2 
 
 B. W. C. C. 164. The burden is on the workman of 
 proving that the employers were not prejudiced in their 
 defense where notice of an injury has not been given 
 pursuant to the provisions of the Act. Hancock v. 
 British Westinghouse Electric Co. (1910), 3 B. W. C. C. 
 210. A professional football player was injured while 
 playing, and claimed compensation under the Act. 
 The employers contended that no claim for compensa- 
 tion had been made within six months from the date of 
 the injury. The County Court judge made no finding 
 on that point. It was held on appeal that the onus was 
 upon the applicant to prove that a claim was made 
 within six months, or if no claim was made, to show 
 that he claims within the proviso of 2 (1) (b) of 
 the Act, excusing the workman where the failure to 
 make a claim has been occasioned by mistake, absence 
 from the United Kingdom or other reasonable cause. 
 Roberts v. Crystal Palace Football Club (1909), 3 B. W. 
 
 C. C. 51. A workman claimed compensation for an 
 alleged injury to his ankle. He had said nothing at 
 the time of the alleged injury and had walked home. 
 He swore that he had sent the notice the next day to 
 the foreman carpenter under whom he worked. This 
 the foreman denied. The job was finished on the day 
 of the alleged accident and all the men were paid off. 
 Formal notice was given two months later. The 
 County Court judge held that although the notice had 
 not been given as soon as practicable, the workman 
 had discharged the onus of showing that the employers 
 were not prejudiced by the delay. It was held on
 
 362 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ignorance of law not a "mistake" excusing giving of notice 
 
 appeal that there was no evidence to support this 
 finding. Burrell v. Holloway Brothers (1911), 4 B. W. 
 C. C. 239. 
 
 6. Prejudice by failure of notice; omission of notice 
 to insurance company by employer. 
 
 An employer is not prejudiced by a failure to receive 
 notice of an accident or claim for compensation by 
 reason of the fact that not receiving such notice he does 
 not give notice to the liability insurance company and 
 is thereby precluded from recovery from the insurance 
 company of the amount which he is compelled to pay 
 the workman. Butt v. Gellyceidrim Colliery Co. (1909), 
 3 B. W. C. C. 44. An employer who has, through delay 
 in giving notice of an accident, lost his right to in- 
 demnity against an insurance company is thereby prej- 
 udiced in his defense. Barker v. Holmes (1904), 6 W. 
 C. C. 52. 
 
 6. Sufficient excuse for failure to give notice. 
 Failure to make a claim within the prescribed period 
 
 is excused when the applicant was absent abroad at the 
 time of the deceased workman's death, and returned as 
 soon as possible, and after returning has been wrongly 
 advised as to his legal rights. Smith v. Pearson and 
 Shipley (1909), 2 B. W. C. C. 468. The foregoing 
 decision was of course made under the particular 
 wording of the British Act. 
 
 7. Ignorance of law not a " mistake " excusing giving 
 
 of notice. 
 
 A claim for compensation was not made within six 
 months, as provided for in 2 (1) of the Act, owing to 
 the workman being ignorant of the existence of the Act,
 
 NOTICE OF CLAIM 363 
 
 California 
 
 and it was held that this was not a mistake or other 
 reasonable cause within the meaning of the Act, so as 
 to excuse the workman from making a claim. Roles v. 
 Pascall & Sons (1911), 104 L. T. 298; 4 B. W. C. C. 148. 
 Where a workman who was injured failed to give notice 
 on the ground that he was in ignorance of the law re- 
 quiring notice and asked to be excused from such 
 default on the ground of "mistake," it was held that 
 ignorance of the law is no mistake within the meaning 
 of the Compensation Act, and as there was ample evi- 
 dence upon which the judge could find that the em- 
 ployer was prejudiced by the failure to receive notice 
 the workman was not entitled to compensation. Bram- 
 ley v. Evans & Sons (1909), 3 B. W. C. C. 34. 
 
 8. Disability not caused until some time after acci- 
 
 dent. 
 
 The fact that an injury does not cause disability 
 until some time after the accident is a reasonable cause 
 for failure to give notice thereof as the foundation of a 
 claim for compensation. Tibbs v. Watts, Blake, Bearne 
 & Co., 2 B. W. C. C. 164. 
 
 9. Waiver of notice by paying compensation. 
 
 Written notice of an accident is waived where after 
 notice by parol the employer pays compensation for a 
 time. Dairies v. Point of Ayr Collieries (1909), 2 B. W. 
 C. C. 157. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 10. No claim to recover compensation under this 
 act shall be maintained unless within thirty days after
 
 364 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 the occurrence of the accident which is claimed to have 
 caused the injury or death, notice in writing, stating 
 the name and the address of the person injured, the 
 time and the place where the accident occurred, and 
 the nature of the injury, and signed by the person 
 injured or someone in his behalf, or in case of his death, 
 by a dependent or some one in his behalf shall be served 
 upon the employer by delivering to and leaving with 
 him a copy of such notice or by mailing to him by 
 registered mail a copy thereof in a sealed and posted 
 envelope addressed to him at his last known place of 
 business or residence. Such mailing shall constitute 
 complete service. Provided, however, that any pay- 
 ment of compensation under this act, in whole or in 
 part, made by the employer before the expiration of 
 said thirty days shall be equivalent to the notice herein 
 required, and provided further, that the failure to give 
 any such notice, or any defect or inaccuracy therein, 
 shall not be a bar to recovery under this act if it is 
 found as a fact in the proceedings for collections of 
 the claim that there was no intention to mislead the 
 employer, and that he was not in fact misled thereby, 
 and provided further that if no such notice is given 
 and no payment of compensation made, within one 
 year from the date of the accident, the right to com- 
 pensation therefor shall be wholly barred." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 14. No proceedings for compensation under the 
 Act shall be maintained unless notice of the accident 
 has been given to the employer as soon as practicable 
 after the happening thereof, and during such disabil- 
 ity, and unless claim for compensation has been made 
 within six months after the injury, 'except that in
 
 NOTICE OF CLAIM 365 
 
 Kansas 
 
 case of an accident resulting in temporary disability, 
 notice of such accident must be given to the employer 
 within thirty days after said accident," or in case of 
 the death of the employe or in the event of his incapac- 
 ity, within six months after such death or incapacity, 
 or in the event that payments have been made under 
 the provisions of this Act, within six months after such 
 payments have ceased. No want or defect or inac- 
 curacy of such notice shall be a bar to the maintenance 
 of proceedings by arbitration or otherwise by the 
 employe", unless the employer proves that he is unduly 
 prejudiced in such proceedings by such want, defect or 
 inaccuracy. Notice of the accident shall, in substance, 
 apprise the employer of the claim of compensation 
 made and shall state the name and address of the em- 
 ploye injured, the approximate date and place of the 
 accident, if known, and in simple language the cause 
 thereof; which notice may be served personally or by 
 registered mail, addressed to the employer at his last 
 known residence or place of business: Provided, that 
 the failure on the part of any person entitled to such 
 compensation to give such notice shall not relieve the 
 employer from his liability for such compensation, 
 when the facts and circumstances of such accident are 
 known to such employer or his agent supervising work 
 in which such employe" was engaged at the time of the 
 injury. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 " 22. Notice and claim. Proceedings for the recov- 
 ery of compensation under this act shall not be main- 
 tainable unless written notice of the accident, stating 
 the time, place, and particulars thereof, and the name 
 and address of the person injured, has been given
 
 Massachusetts 
 
 within ten days after the accident, and unless a claim 
 for compensation has been made within six months 
 after the accident, or in case of death, within six 
 months from the date thereof. Such notice shall be 
 delivered by registered mail, or by delivery to the 
 employer. The want of, or any defect in such notice, 
 or in its service, shall not be a bar unless the employer 
 proves that he has, in fact, been thereby prejudiced, 
 or if such want or defect was occasioned by mistake, 
 physical or mental incapacity or other reasonable 
 cause, and the failure to make a claim within the 
 period above specified shall not be a bar, if such failure 
 was occasioned by a mistake, physical or mental in- 
 capacity or other reasonable cause." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 15. 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 
 association or subscriber as soon as practicable after 
 the happening thereof, and unless the claim for com- 
 pensation with respect to such injury shall have been 
 made within six months after the occurrence of the 
 same ; or, in case 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. 
 
 " 16. The said notice shall be in writing, and shall 
 state in ordinary language the time, place and cause 
 of the injury, and shall be signed by the person in- 
 jured, 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, or by a person to whom payments may 
 be due under this act or by a person in his behalf.
 
 NOTICE OF CLAIM 367 
 
 Any form of written communication signed by any 
 person who may give the notice as above provided, 
 which contains the information that the person has 
 been so injured, giving the time, place and cause of 
 the injury, shall be considered a sufficient notice." 
 (As amended by L. 1912, c. 571.) 
 
 " 17. The notice shall be served upon the associa- 
 tion, or an officer or agent thereof, or upon the sub- 
 scriber, or upon one subscriber, if there are more sub- 
 scribers than one, or upon any officer or agent of a 
 corporation if the subscriber is a corporation, by de- 
 livering the same 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 corporation on whom it is to be served, 
 at his last known residence or place of business. 
 
 " 18. A notice given under the provisions of this 
 act 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 association was in fact misled 
 thereby. Want of notice shall not be a bar to pro- 
 ceedings under this act, if it be shown that the as- 
 sociation, subscriber, or agent had knowledge of the 
 injury." 
 
 ******** 
 
 " 23. The claim for compensation shall be in 
 writing and shall state the time, place, cause and 
 nature of the injury: it 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 per- 
 son in his behalf, or by a person to whom payments 
 may be due under this act or by a person hi his be- 
 half, and shall be filed with the industrial accident 
 board. The failure to make a claim within the period
 
 368 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 prescribed by section fifteen shall not be a bar to the 
 maintenance of proceedings under this act if it is 
 found that it was occasioned by mistake or other 
 reasonable cause." (Added by L. 1912, c. 751.) 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part II, 15. 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 three months after the happening thereof, 
 and unless the claim for compensation with respect 
 to such injury shall have been made within six months 
 after the occurrence of the same; or, in case 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. 
 
 " 16. The said notice shall be in writing, and 
 shall state in ordinary language 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 dependents or by a person in 
 their behalf. 
 
 " 17. The notice shall be served upon the em- 
 ployer 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 business, or by sending it by registered mail ad- 
 dressed to the person or corporation on whom it is to 
 be served, at his last known residence or place of busi- 
 ness. 
 
 " 18. A notice given under the provisions of this 
 act 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 th 3 e inten-
 
 NOTICE OF CLAIM 369 
 
 Nevada 
 
 tion to mislead, and the employer, or the insurance 
 company carrying such risk, or the commissioner of 
 insurance, as the case may be, was in fact misled 
 thereby. Want of such written 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." c 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 " 4. Notice of accidents must be given partnership 
 or corporation carrying on any to the employer as 
 soon as practicable after the happening thereof, and 
 the claim for compensation with respect to such acci- 
 dent within six months from the occurrence of such 
 accident causing the injury, or in case of death, within 
 six months from the time of death; provided always, 
 that the want of, or any defect or inaccuracy in, such 
 notice shall not be a bar to the maintenance of such 
 proceedings if it is found in the proceedings for settling 
 the claim that the employer is not prejudiced in his 
 defense by the want, defect or inaccuracy, and that 
 such want, defect or inaccuracy was occasioned by 
 mistake or other reasonable cause. Notice in respect 
 of an injury under this act shall give the name and ad- 
 dress of the person injured, and shall state in ordinary 
 language the cause of the injury, if known, the date at 
 which it was sustained, and shall be served on the em- 
 ployer, or, if there is more than one employer, upon 
 one of such employers. The notice may be served by 
 delivering the same to or at the residence or place of 
 business of the person upon whom it is to be served, or 
 the notice may also be served by post, by a registered 
 letter addressed to the person on whom it is to be 
 served at his last known place of residence or place of 
 24
 
 370 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 business, and if served by post shall be deemed to have 
 been served at the time when the letter containing the 
 same would have been delivered in the ordinary course 
 of post, and in proving the service of such notice it 
 shall be sufficient to prove that the notice was properly 
 addressed and registered. Where the employer is a 
 body of persons, natural or artificial, the notice may 
 also be served by delivering the same at, or by sending 
 it by post in a registered letter addressed to the em- 
 ployer at the office, or, if there be more than one office, 
 any one of the offices of such body." 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 " 5. No proceedings for compensation under this 
 act shall be maintained unless notice of the accident 
 as hereinafter provided has been given to the employer 
 as soon as practicable after the happening thereof and 
 before the workman has voluntarily left the employ- 
 ment in which he was injured and during such dis- 
 ability, and unless claim for compensation has been 
 made within six months from the occurrence of the 
 accident, or in case of the death of the workman, or in 
 the event of his physical or mental incapacity, within 
 six months after such death or the removal of such 
 physical or mental incapacity, or in the event that 
 weekly payments have been made under this article, 
 within six months after such payments have ceased, 
 but no want or defect or inaccuracy of a notice shall 
 be a bar to the maintenance of proceedings unless the 
 employer proves that he is prejudiced by such want, 
 defect or inaccuracy. Notice of the accident shall 
 appraise the employer of the claim for compensation 
 under this article, and shall state the name and ad- 
 dress of the workman injured, and the date and place
 
 NOTICE OF CLAIM 371 
 
 New Jersey 
 
 of the accident. The notice may be served personally 
 or by sending it by mail in a registered letter addressed 
 to the employer at his last known residence or place of 
 business." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "II, 15. As to notification of employer. Unless 
 the employer shall have actual knowledge of the oc- 
 currence of the injury, or unless the employe", or some 
 one on his behalf, or some of the dependents, or some 
 one on their behalf, shall give notice thereof to the 
 employer within fourteen days of the occurrence of 
 the injury, then no compensation shall be due until 
 such notice is given or knowledge obtained. If the 
 notice is given, or the knowledge obtained within 
 thirty days from the occurrence of the injury, no want, 
 failure, or inaccuracy of a notice shall be a bar to ob- 
 taining compensation, unless the employer shall show 
 that he was prejudiced by such want, defect or in- 
 accuracy, and then only to the extent of such preju- 
 dice. If the notice is given, or the knowledge obtained 
 within ninety days, and if the employe 1 , or other bene- 
 ficiary, shall show that his failure to give prior notice 
 was due to his mistake, inadvertence, ignorance of 
 fact or law, or inability, or to the fraud, misrepre- 
 sentation or deceit of another person, or to any other 
 reasonable cause or excuse, then compensation may 
 be allowed, unless, and then to the extent only that the 
 employer shall show that he was prejudiced by failure 
 to receive such notice. Unless knowledge be obtained, 
 or notice given, within ninety days after the occur- 
 rence of the injury, no compensation shall be allowed." 
 
 " II, 16. Service of notice. The notice referred to 
 may be served personally upon the employer, or upon
 
 372 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 any agent of the employer upon whom a summons may 
 be served in a civil action, or by sending it through 
 the mail to the employer at the last known residence 
 or business place thereof within the State, and shall 
 be substantially in the following form: 
 " Form of notice. Sufficiency of notice. 
 " To (name of employer) : 
 
 You are hereby notified that a personal injury 
 was received by (name of employe* injured), who 
 . was in your employ at (place) while engaged as 
 (nature of employment), on or about the ( ) 
 
 day of ( ), nineteen hundred and ( ), 
 
 and that compensation will be claimed therefor. 
 
 Signed, 
 
 ( ). 
 
 but no variation from this form shall be material if the 
 notice is sufficient to advise the employer that a cer- 
 tain employe, by name, received an injury in the 
 course of his employment on or about a specified time, 
 at or near a certain place. Notice served at the office 
 of, or on the person who was the employer's immediate 
 superior, shall be a compliance with this act." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 Governed by rules of the State Liability Board of 
 Awards. 8 and 16. See Chapter XXIV, post. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 17. Notice of injury. No proceedings 
 for compensation for an injury under this act shall be 
 maintained unless a notice of the injury shall have
 
 NOTICE OP CLAIM 373 
 
 Rhode Island 
 
 been given to the employer within thirty days after 
 the happening thereof; and unless the claim for com- 
 pensation with respect to such hi jury shall have been 
 made within one year after the occurrence of the 
 same, or, in case of the death of the employe", or in the 
 event of his physical or mental incapacity, within one 
 year after death or the removal of such physical or 
 mental incapacity. 
 
 " 18. Such notice shall be in writing and shall 
 state in ordinary language the nature, tune, place, 
 and cause of the injury, and the name and address of 
 the person injured 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 de- 
 pendent, or by a person in behalf of either. 
 
 " 19. Such notice shall be served upon the em- 
 ployer, or upon one employer, if there are more em- 
 ployers than one, or, if the employer is a corporation, 
 upon any officer or agent upon whom process may be 
 served, by delivering the same to the person on whom 
 it is to be served, or by leaving it at his last known 
 residence or place of business, or by sending it by 
 registered mail addressed to the person to be served, 
 or, in the case of a corporation, to the corporation 
 itself, at his or its last known residence or place of 
 business; and such mailing of the notice shall con- 
 stitute completed service. 
 
 " 20. A notice given under the provisions of this 
 act shall not be held invalid or insufficient by reason 
 of any inaccuracy in stating the nature, tune, place 
 or cause of the injury, or the name and address of the 
 person injured, unless it is shown that it was the in- 
 tention to mislead and the employer was in fact mis- 
 led thereby. Want of notice shall not be a bar to 
 proceedings under this act, if it be shown that the
 
 374 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 employer or his agent had knowledge of the injury, 
 or that failure to give such notice was due to accident, 
 mistake, or unforeseen cause." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 12. Filing Claim for Compensation. 
 
 " (a) Where a workman is entitled to compensation 
 under this act he shall file with the department, his 
 application for such, together with the certificate of 
 the physician who attended him, and it shall be the 
 duty of the physician to inform the injured workman 
 of his rights under this act and to lend all necessary 
 assistance in making this application for compensation 
 and such proof of other matters as required by the 
 rules of the department without charge to the work- 
 man. 
 
 "(6) Where death results from injury the parties 
 entitled to compensation under this act, or some one 
 in their behalf, shall make application for the same 
 to the department, which application must be accom- 
 panied with proof of death and proof of relationship 
 showing the parties to be entitled to compensation 
 under this act, certificates of attending physician, if 
 any, and such other proof as required by the rules of 
 the department. 
 
 " (c) If change of circumstance warrant an increase 
 or rearrangement of compensation, like application 
 shall be made therefor. No increase or rearrangement 
 shall be operative for any period prior to application 
 therefor. 
 
 " (d) No application shall be valid or claim there- 
 under enforceable unless filed within one year after 
 the day upon which the injury occurred or the right 
 thereto accrued."
 
 NOTICE OF CLAIM 375 
 
 Wisconsin 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 "2394-11. No claim to recover compensation 
 under this act shall be maintained unless, within 
 thirty days after the occurrence of the accident which 
 is claimed to have caused the injury or death, notice 
 in writing, stating the name and address of the person 
 injured, the time and place where the accident oc- 
 curred, and the nature of the injury, and signed by 
 the person injured or by some one on his behalf, or in 
 case of his death, by a dependent or some one on his 
 behalf, shall be served upon the employer, either by 
 delivering to and leaving with him a copy of such 
 notice, or by mailing to him by registered mail a copy 
 thereof in a sealed and postpaid envelope addressed to 
 him at his last known place of business or residence. 
 Such mailing shall constitute completed service. 
 Provided, however, that any payment of compensa- 
 tion under this act, in whole or in part, made by the 
 employer before the expiration of said thirty days, 
 shall be equivalent to the notice herein required; and 
 provided further, that the failure to give any such 
 notice, or any defect or inaccuracy therein, shall not 
 be a bar to recovery under this act if it is found as a 
 fact in the proceedings for collection of the claim that 
 there was no intention to mislead the employer, and 
 that he was not in fact misled thereby; and provided 
 further, that if no such notice is given and no payment 
 of compensation made, within two years from the date 
 of the accident, the right to compensation therefor 
 shall be wholly barred." 
 
 The statute does not specify the form of the notice. 
 For form under New Jersey Act see ante, page 372.
 
 CHAPTER XXII 
 
 LIMITATIONS ON ACTIONS AND PROCEEDINGS 
 UNDER ACT 
 
 Page Page 
 
 CALIFORNIA 376 NEW HAMPSHIRE 380 
 
 ILLINOIS 377 NEW JERSEY 380 
 
 KANSAS 377 OHIO 380 
 
 MASSACHUSETTS 378 RHODE ISLAND 381 
 
 MICHIGAN 379 WASHINGTON 381 
 
 NEVADA 379 WISCONSIN 382 
 
 Where compensation has been paid some time, and 
 upon a reference to a medical referee it is found that 
 incapacity has ceased and compensation is stopped the 
 certificate is not a bar to the application of the workman 
 for further compensation when the incapacity has re- 
 curred, where there is a mere acquiescence by the 
 workman as to the nonpayment and no proceedings 
 are taken on the report of the referee. It is held that 
 in such a case the matter is merely allowed to go to 
 sleep and that the compensation is not terminated in 
 a manner which is binding on either party. United 
 Collieries v. King (1909), 47 Scotch L. R. 41; 3 B. W. 
 C. C. 546. 
 
 CALIFORNIA 
 (L. 1911, c. 399) 
 
 Notice of accident must be given within thirty days. 
 10. See Chapter XXI, ante, page 363. But may be 
 implied. Id. If not given at all within one year the 
 right to compensation is wholly lost. Id. 
 
 376
 
 LIMITATIONS 377 
 
 Kansas 
 
 Notice of hearing on application to the Board must 
 be for a time not more than forty days after filing the 
 application. 15. See Chapter XXIV, post, page 409. 
 
 Appeal may be taken within thirty days after judg- 
 ment rendered on an award. 18. See Chapter XXV, 
 post, page 454. 
 
 Notice of hearing before the Board, ten days. 15. 
 See Chapter XXIV, post, page 409. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 Notice must be given "as soon as practicable" 
 after the accident; and proceedings on a claim for 
 compensation must be taken within six months after 
 the injury, except in cases of temporary injury. See 
 14, Chapter XXI, ante, page 364. 
 
 Parties must appear before arbitrators within ten 
 days after appointment. 10. See Chapter XXIV, 
 post, page 411. 
 
 Appeals to the Circuit Court from the decisions of 
 arbitrators must be taken within twenty days after the 
 filing of the report of the arbitrators. 10. See Chap- 
 ter XXIV, post, page 411. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 " 10. Incompetency of workman. In case an in- 
 jured workman is mentally incompetent or a minor, or 
 where death results from the injury, in case any of his 
 dependents as herein defined is mentally incompetent 
 or a minor, at the time when any right, privilege or 
 election accrues to him under this act, his guardian 
 may, in his behalf, claim and exercise such right, privi-
 
 378 BKADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 lege, or election, and no limitation of time, in this act 
 provided for, shall run, so long as such incompetent or 
 minor has no guardian." 
 
 " 22. Notice and claim. Proceedings for the re- 
 covery of compensation under this act shall not be 
 maintainable unless written notice of the accident, 
 stating the time, place, and particulars thereof, and 
 the name and address of the person injured, has been 
 given within ten days after the accident, and unless 
 a claim for compensation has been made within six 
 months after the accident, or in case of death, within 
 six months from the date thereof. Such notice shall 
 be delivered by registered mail, or by delivery to the 
 employer. The want of, or any defect in such notice, 
 or in its service, shall not be a bar unless the employer 
 proves that he has, in fact, been thereby prejudiced, 
 or if such want or defect was occasioned by mistake, 
 physical or mental incapacity or other reasonable 
 cause, and the failure to make a claim within the 
 period above specified shall not be a bar, if such failure 
 was occasioned by a mistake, physical or mental in- 
 capacity or other reasonable cause." 
 
 "37. When the cause of action accrues. The cause 
 of action shall be deemed in every case, including a 
 case where death results from the injury to have ac- 
 crued to the injured workman at the time of the acci- 
 dent; and the time limited in which to commence an 
 action for compensation therefor shall run as against 
 him, his legal representatives and dependents from 
 that date." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "Part II, 14. If an injured employe" is mentally 
 incompetent or is a minor at the time when any right
 
 LIMITATIONS 379 
 
 Nevada 
 
 or privilege accrues to him under this act, his guardian 
 or next friend may in his behalf claim and exercise 
 such right or privilege." 
 
 Notice of the injury must be given within six months 
 after it occurs. Part II, 15. See Chapter XXI, ante, 
 page 366. 
 
 A petition to review a finding of a committee of 
 arbitration must be filed within seven days after the 
 finding is filed with the Industrial Accident Board. 
 Part III, 7. See Chapter XXIV, post, page 420. 
 
 MICHIGAN 
 (L. 1912, No. 3) 
 
 "Part VI, 2. If the provisions of this act relating 
 to compensation for injuries to or death of workmen 
 shall be repealed or adjudged invalid or unconstitu- 
 tional, 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 commence- 
 ment 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." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 Notice of claim within six months after accident. 
 See 4, in Chapter XXI, ante, page 369. 
 
 Time within which arbitration proceedings must be 
 heard. See 8, in Chapter XXIV, post, page 426.
 
 380 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 See 5, reprinted in Chapter XXI, ante, page 370, 
 for time in which notice must be given and other pro- 
 ceedings taken under Act. 
 
 " 8. In case an injured workman shall be mentally 
 incompetent at the time when any right or privilege 
 accrues to him under this act, the guardian of the in- 
 competent appointed pursuant to law may, on behalf 
 of such incompetent claim and exercise any such right 
 or privilege with the same force and effect as if the 
 workman himself had been competent and had claimed 
 or exercised any such right or privilege, and no limita- 
 tion of time in this act provided for shall run- so long 
 as said incompetent workman has no guardian." 
 
 For time within which to serve notice of injury see 
 5, in Chapter XXI, ante, page 370. 
 
 Notice of proceedings in court; see 9, in Chapter 
 XXIV, post, page 427*. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 Notice of the injury must be given by the employe" 
 to the employer within ninety days after the accident 
 unless the employer has actual knowledge thereof. 
 See 2, paragraph 15, Chapter XXI, ante, page 371. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 Governed by rules of the State Liability Board of 
 awards. 8 and 16. See Chapter XXIV, post, 
 pages 434-436.
 
 LIMITATIONS 381 
 
 Washington 
 
 As to appeals see 36, in Chapter XXIV, post, 
 page 436. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. Ill, 18. Claim when barred. An employe's 
 claim for compensation under this act shall be barred 
 unless an agreement or a petition, as provided in this 
 Article, shall be filed within two years after the oc- 
 currence of the injury, or, in case of the death of the 
 employe", or, in the event of his physical or mental 
 incapacity, within two years after the death of the 
 employe or the removal of such physical or mental 
 incapacity." 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 "No application for (compensation under the Act) 
 shall be valid or claim thereunder enforceable unless 
 filed within one year after the day upon which the 
 injury occurred or the right thereto accrued." 12, (d). 
 See Chapter XXI, ante, page 374. 
 
 "28. Statute of Limitations Saved. If the pro- 
 visions of this act relative to compensation for in- 
 juries to or death of workmen become invalid because 
 of any adjudication, or be repealed, the period inter- 
 vening between the occurrence of an injury or death, 
 not previously compensated for under this act by 
 lump payment or completed monthly payments, and 
 such repeal or the rendition of the final adjudication 
 of the 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 : Provided, That 
 such action be commenced within one year after such 
 repeal or adjudication; but in any such action any
 
 382 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 sum paid out of the accident fund to the workman on 
 account of injury, to whom the action is prosecuted, 
 shall be taken into account or disposed of as follows: 
 If the defendant employer shall have paid without 
 delinquency into the accident fund the payment pro- 
 vided by section 4, such sums shall be credited upon 
 the recovery as payment thereon, otherwise the sum 
 shall not be so credited but shall be deducted from the 
 sum collected and be paid into the said fund from 
 which they had been previously disbursed." 
 
 WISCONSIN 
 
 Notice must be given within thirty days. See 
 2394-11, Chapter XXI, ante, page 375. 
 
 Compromises may be modified within one year after 
 they are made. 2394-15, Chapter XXIV, post, 
 page 448. 
 
 A notice of hearing on any application made to the 
 Industrial Accident Board shall be made for a time not 
 more than forty days after the filing of the application. 
 See 2394-16, Chapter XXIV, post, page 448. 
 
 Within twenty days from the date of an award a 
 party can begin an action for a review thereof. 2394- 
 19. Chapter XXV, post, page 466. The Board must 
 serve its answer within the same length of time. Id.
 
 CHAPTER XXIII 
 
 EXAMINATIONS BY PHYSICIANS 
 
 Page 
 
 1. Demand that workman's attorney be present at medical ex- 
 
 amination 383 
 
 2. Unreasonable demand that workman's medical attendant 
 
 be present at examination 384 
 
 3. Cause of death submitted to medical referee 384 
 
 4. Refusal of workman to undergo surgical operation 385 
 
 5. Medical referee's report not conclusive on arbitrator 386 
 
 Page Page 
 
 CALIFORNIA 386 NEW HAMPSHIRE 392 
 
 ILLINOIS 387 NEW JERSEY 392 
 
 KANSAS 388 OHIO 393 
 
 MASSACHUSETTS 390 RHODE ISLAND 393 
 
 MICHIGAN 391 WASHINGTON 394 
 
 NEVADA 391 WISCONSIN 395 
 
 1. Demand that workman's attorney be present at 
 
 medical examination. 
 
 A workman in receipt of compensation under the 
 Act was required by his employers to submit himself for 
 examination by a certain duly qualified medical prac- 
 titioner. The workman refused to do so unless the 
 examination was at his solicitors' office or in his solici- 
 tors' presence. The employers repeated their request, 
 but stated that the workman's medical adviser might 
 attend at the examination. The workman again re- 
 fused unless his conditions were complied with. It 
 was held on these facts that there was a refusal to 
 submit to a medical examination. The court said: 
 "It cannot be too well known that a solicitor's office is 
 
 383
 
 384 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Cause of death submitted to medical referee 
 
 not, in ordinary circumstances, a proper place at which 
 to hold a medical examination of a workman." Warby 
 v. Plaistowe & Co. (1910), 4 B. W. C. C. 67. 
 
 2. Unreasonable demand that workman's medical 
 
 attendant be present at examination. 
 A workman having claimed compensation under the 
 Act of 1906, his employers required him to submit him- 
 self for medical examination. The workman refused 
 except on condition that his own medical attendant 
 should be present throughout the examination. He 
 conceded that there were no special circumstances in 
 his case which called for the presence of his medical 
 attendant. It was held that the workman's refusal to 
 submit to examination unless his own medical attend- 
 ant was present was a " refusal within the Act." Mor- 
 gan v. William Dixon (1910), 48 Scotch L. R. 296; 4 
 B. W. C. C. 363. A workman who refuses to be ex- 
 amined by the employer's physician unless the work- 
 man's own medical adviser is present, does not refuse 
 to submit himself to such examination or obstruct the 
 same, within the meaning of the Act. Devitt and Crosby 
 Magee v. The Owners of the S. S. " Bainbridge" (1909), 
 2 K. B. 802; 2 B. W. C. C. 383. 
 
 3. Cause of death submitted to medical referee. 
 
 A workman was injured and afterward died in the 
 hospital. His dependent claimed compensation, and 
 on the hearing conflicting medical evidence was given 
 as to the cause of death. The County Court judge 
 thereupon submitted the matter to a medical referee, 
 in accordance with Schedule II (15) of the Act, which 
 provides that the judge may submit to a referee any
 
 EXAMINATIONS BY PHYSICIANS 385 
 
 Refusal of workman to undergo surgical operation 
 
 matter which seems material, "subject to regulations 
 made by the Secretary of State and the Treasury." 
 These regulations (dated June 24, 1907), in fact, deal 
 only with the case of a living workman. It was held 
 that the judge had, nevertheless, jurisdiction to sub- 
 mit for report the question of the cause of death." 
 Carolan v. Harrington & Sons (1911), 2 K. B. 733; 4 B. 
 W. C. C. 253. 
 
 4. Refusal of workman to undergo surgical operation. 
 An employer is not entitled to have compensation 
 terminated because of the refusal of the workman to 
 undergo an operation unless he can show clearly that 
 the refusal of the workman was unreasonable. Pro- 
 prietors of Hays Wharf v. Brown (1909), 3 B. W. C. C. 
 84. The onus rests upon the employer to show that 
 a workman unreasonably refused to submit to an 
 operation whereby it is alleged that the operation 
 would have cured the disability. Marshall v. Orient 
 Steam Navigation Co. (1910), 1 K. B. 79; 3 B. W. C. C. 
 15. So held where a ship's fireman whose finger was 
 injured refused to have an incision made as advised by 
 the ship's doctor, who declared that such an incision 
 would have saved the finger, and the workman's 
 doctor declared to the contrary. Id. The refusal by a 
 workman to undergo a surgical operation must be 
 reasonable or he will not be entitled to a continuance 
 of the compensation awarded. Paddington Borough 
 Council v. Stack (1909), 2 B. W. C. C. 402. Where a 
 workman refuses to submit to a surgical operation of 
 a simple character, involving no serious risk to life and 
 health, and which, according to the unanimous pro- 
 fessional evidence, offers a reasonable prospect of the 
 25
 
 386 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 removal of the incapacity from which he suffers, is 
 debarred from any right to claim further compensation. 
 Such continuance of his disability is not attributable to 
 the original accident, but to his unreasonable refusal 
 to avail himself of surgical treatment. Warncken v. 
 Richard Moreland & Son (1908), 100 L. T. 12; 2 B. W. 
 C. C. 350. A workman injured by accident arising out 
 of and in the course of his employment, who refuses, 
 on the advice of his own doctor, to submit to a surgical 
 operation, which, in the opinion of such medical man, 
 involved some risk to his life, is not acting unreasonably 
 in such refusal, and is not thereby precluded from 
 claiming compensation because of his continued dis- 
 ability to work. Tutton v. Owners of Steamship "Majes- 
 tic" (1909), 100 L. T. 644; 2 B. W. C. C. 346. 
 
 5. Medical referee's report not conclusive on arbi- 
 trator. 
 
 Where the County Court judge submits to a medical 
 referee for report any matter which seems material to 
 any question arising in the arbitration the judge is not 
 bound by the referee's report, but should exercise an 
 independent judgment. Quinn v. Flynn (1910), 44 
 Irish L. T. R. 183; 3 B. W. C. C. 594. * 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 11. Wherever in case of injury the right to com- 
 pensation under this act would exist in favor of any 
 employe, he shall, upon the written request of his em- 
 ployer, submit from time to time to examination by a 
 regular practicing physician, who shall be provided 
 and paid for by the employer, and shall likewise sub-
 
 EXAMINATIONS BY PHYSICIANS 387 
 
 Illinois 
 
 mit to examination from time to time by any regular 
 physician selected by said Industrial Accident Board, 
 or any member or examiner thereof. The employe 
 shall be entitled to have a physician provided and 
 paid for by himself present at any such examination. 
 So long as the employe", after such written request of 
 the employer, shall refuse to submit to such examina- 
 tion, or shall in any way obstruct the same, his right 
 to begin or maintain any proceeding for the collection 
 of compensation shall be suspended, and if he shall 
 refuse to submit to such examination after direction 
 by the board, or any member or examiner thereof, or 
 shall in any way obstruct the same, his right to the 
 weekly indemnity which shall accrue and become pay- 
 able during the period of such refusal or obstruction, 
 shall be barred. Any physician who shall make or be 
 present at any such examination may be required to 
 testify as to the results thereof." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 "9. Any employe entitled to receive disability 
 payments shall be required if requested by the em- 
 ployer to submit himself for examination at the ex- 
 pense of the employer to a duly qualified medical 
 practitioner or surgeon selected by the employer, at a 
 time and place reasonably convenient for the em- 
 ploye, as soon as practicable after the injury, and also 
 one week after the first examination, and thereafter 
 at intervals not oftener than once every four weeks, 
 which examinations shall be for the purpose of de- 
 termining the nature, extent and probable duration of 
 the injury received by the employe, and for the pur- 
 pose of adjusting the compensation which may be due 
 the employe from time to time for disability according
 
 388 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 to the provisions of Sections 4 and 5 of this Act : PRO- 
 VIDED, HOWEVER, that such examination shall be made 
 in the presence of a duly qualified medical practi- 
 tioner or surgeon provided and paid for by the em- 
 ploye", if such employe so desires, and in the event of a 
 disagreement between said medical practitioners or 
 surgeons as to the nature, extent or probable duration 
 of said injury or disability, they may agree upon a 
 third medical practitioner or surgeon, and, failing to 
 agree upon such third medical practitioner or surgeon, 
 the judge of the county court of the county where the 
 employe resided or was employed at the time of the 
 injury, shall within six days after petition filed in such 
 court for that purpose, select a third medical practi- 
 tioner or surgeon and the majority report of such three 
 physicians as to the nature, extent and probable dura- 
 tion of such injury or disability shall be used for the 
 purpose of estimating the amount of compensation 
 payable under this Act. If the employe refuses so to 
 submit himself to examination or unnecessarily ob- 
 structs the same, his right to compensation payments 
 shall be temporarily suspended until such examination 
 shall have taken place, and no compensation shall be 
 payable under this Act during such period." 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 " 17. Medical examination, (a) After an injury to 
 the employe", if so requested by his employer, the 
 employe" must submit himself to examination at some 
 reasonable time to a reputable physician selected by 
 the employer, and from time to time thereafter during 
 the pendency of his claim for compensation, or during 
 the receipt by him for payment under this act, but he 
 shall not be required to so submit himself, more than
 
 EXAMINATIONS BY PHYSICIANS 389 
 
 Kansas 
 
 once in two weeks unless in accordance with such 
 orders as may be made by the proper court or judge 
 thereof. Either party may upon demand require a 
 report of any examination made by the physician of 
 the other party upon payment of a fee of one dollar 
 therefor. (6) If the employ^ request he shall be en- 
 titled to have a physician of his own selection present 
 at the time to participate in such examinations, 
 (c) Unless there has been a reasonable opportunity 
 thereafter for such physician selected by the employe" 
 to participate in the examination in the presence of 
 the physician selected by the employer, the physician 
 selected by the employer shall not be permitted after- 
 wards to give evidence of the condition of the em- 
 ploy6 in a dispute as to- the injury, (d) Except as 
 provided herein in this act there shall be no other dis- 
 qualification or privilege preventing the testimony of 
 a physician who actually makes an examination." 
 
 " 18. Medical examination by neutral physician. 
 In case of a dispute as to the injury, the committee, 
 or arbitrator as hereinafter provided, or the judge of 
 the district court shall have the power to employ a 
 neutral physician of good standing and ability, whose 
 duty it shall be, at the expense of the parties to make 
 an examination of the injured person, as the court 
 may direct, on the petition of either or both the em- 
 ployer and employe or dependents." 
 
 " 19. Testimony by court physician. If the em- 
 ployer or the employe" has a physician make such an 
 examination and no reasonable opportunity is given 
 to the other party to have his physician make exami- 
 nation, then, in case of a dispute as to the injury, the 
 physician of the party making such examination shall 
 not give evidence before the court unless a neutral 
 physician either has examined or then does examine
 
 390 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 the injured employe and give testimony regarding the 
 injuries." 
 
 "20. Refusal of medical examination. If the em- 
 ploye shall refuse examination by physician selected 
 by the employer with the presence of a physician 
 of his own selection, and shall refuse an examination 
 by the physician appointed by the court, he shall have 
 no right to compensation during the period from re- 
 fusal until he, or some one in his behalf, notifies the 
 employer or the court that he is willing to have such 
 examination." 
 
 a 21. Certificate of physician. A physician mak- 
 ing an examination shall give to the employer and 
 to the workman a certificate as to the condition of 
 the workman, but such certificate shall not be com- 
 petent evidence of that condition unless supported 
 by his testimonv if his testimony would have been 
 admissible." 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part II, 19. After an employe" has received an 
 injury and from time to time thereafter during the 
 continuance of his disability he shall, if so requested 
 by the association or subscriber, submit himself to an 
 examination by a physician or surgeon authorized to 
 practice medicine under the laws of the common- 
 wealth, furnished and paid for by the association or 
 subscriber. The employe shall have the right to have 
 a physician provided and paid for by himself present 
 at the examination. If he refuses to submit himself 
 for the examination, or in any way obstructs the same, 
 his right to compensation shall be suspended, and his 
 compensation during the period of suspension may be 
 forfeited." (As amended by L. 1912, c. 571.)
 
 EXAMINATIONS BY PHYSICIANS 391 
 
 Nevada 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part II, 19. After an employe" has given notice 
 of an injury, as provided by this act, and from time 
 to time thereafter during the continuance of his dis- 
 ability, he shall, if so requested by the employer, or 
 the insurance company carrying such risk, or the 
 commissioner of insurance, as the case may be, sub- 
 mit himself to an examination by a physician or 
 surgeon authorized to practice medicine under the 
 laws of the state, furnished and paid for by the em- 
 ployer, or the insurance company carrying such risk, 
 or the commissioner of insurance, as the case may be. 
 The employe shall have the right to have a physician 
 provided and paid for by himself present at the ex- 
 amination. If he refuses to submit himself for the 
 examination, or in any way obstructs the same, his 
 right to compensation shall be suspended, and his 
 compensation during the period of suspension may 
 be forfeited. Any physician who shall make or be 
 present at any such examination may be required to 
 testify under oath as to the results thereof. 
 
 "Part III, 9. The industrial accident board or 
 any member thereof may appoint a duly qualified 
 impartial physician to examine the injured employ 6 
 and to report. The fee for this service shall be five 
 dollars and traveling expenses, but the board may 
 allow additional reasonable amounts in extraordinary 
 cases." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 "7. Any workman entitled to receive weekly 
 payments under this Act is required, if requested by
 
 392 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 the employer, to submit himself for examination 
 by a duly qualified medical practitioner or surgeon 
 provided and paid for by the employer, at a time and 
 place reasonably convenient for the workman, within 
 three weeks after the injury, and thereafter at inter- 
 vals not oftener than once in six weeks. A copy of 
 the report of the examining physician shall be fur- 
 nished to the workman. * * *" For remainder 
 of this section see Chapter XXIV, post, page 426. 
 The subsequent portions of the section apply only 
 to settlements of disputes. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 "7. Any workman entitled to receive weekly 
 payments under this Act is required, if requested 
 by the employer, to submit himself for examination 
 by a duly qualified medical practitioner or surgeon 
 provided and paid for by the employer, at a time and 
 place reasonably convenient for the workman, within 
 two weeks after the injury, and thereafter at inter- 
 vals not oftener than once in a week. If the workman 
 refuses to submit to such examination, or obstructs 
 the same, his right to weekly payments shall be sus- 
 pended until such examination has taken place, 
 and no compensation shall be payable during or for 
 account of such period." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "2-17. Examination of employe" as to physical 
 condition. After an injury, the employe", if so re- 
 quested by his employer, must submit himself for 
 examination at some reasonable time and place
 
 EXAMINATIONS BY PHYSICIANS 393 
 
 Rhode Island 
 
 within the State, and as often as may be reasonably 
 requested, to a physician or physicians authorized 
 to practice under the laws of this State. If the em- 
 ploye 1 requests, he shall be entitled to have a physician 
 or physicians of his own selection present to par- 
 ticipate in such examination. The refusal of the 
 employe to submit to such examination shall deprive 
 him of the right to compensation during the con- 
 tinuance of such refusal. When a right to compen- 
 sation is thus suspended no compensation shall be 
 payable in respect of the period of suspension." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no specific provision on this subject in the 
 Ohio Statute, but doubtless the State Liability Board 
 of Awards has power to make regulations concerning 
 it. See Chapter XXIV, post, page 432. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 21. Examination of injured. The em- 
 ploye 1 shall, after an injury, at reasonable times dur- 
 ing the continuance of his disability, if so requested 
 by his employer, submit himself to an examination 
 by a physician or surgeon authorized to practice 
 medicine under the laws of the state, furnished and 
 paid for by the employer. The employe shall have 
 the right to have a physician, provided and paid for 
 by himself, present at such examination. 
 
 "Any justice of the superior court may, at any 
 time after an injury, on the petition of the employer 
 or employe 1 , appoint a competent and impartial phy-
 
 394 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 sician or surgeon to act as a medical examiner, and the 
 reasonable fees of such medical examiner as fixed by 
 the justice appointing him shall be paid by the party 
 moving for such appointment. 
 
 "Such medical examiner being first duly sworn to 
 the faithful performance of his duties before the jus- 
 tice appointing him or clerk of the court shall there- 
 upon, and as often as necessary, examine such injured 
 employe in order to determine the nature, extent, and 
 probable duration of the injury. Such medical ex- 
 aminer shall file a report of every examination made 
 of such employe in the office of the clerk of the su- 
 perior court having jurisdiction of the matter as 
 provided in section 16 of Article III of this act, and 
 such report shall be produced in evidence in any hear- 
 ing or proceeding to determine the amount of com- 
 pensation due such employ^ under the provisions of 
 this act. If such employe refuses to submit himself 
 for any examination provided for in this act, or in any 
 way obstructs any such examination, his rights to 
 compensation shall be suspended and his compensa- 
 tion during such period of suspension may be for- 
 feited." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 13. Medical Examination. Any workman en- 
 titled to receive compensation under this Act is re- 
 quired, if requested by the department, to submit 
 himself for medical examination at a time and from 
 time to time at a place reasonably convenient for the 
 workman and as may be provided by the rules of the 
 department. If the workman refuses to submit to 
 any such examination, or obstructs the same, his 
 rights to monthly payments shall be suspended un-
 
 EXAMINATIONS BY PHYSICIANS 395 
 
 Wisconsin 
 
 til such examination has taken place, and no com- 
 pensation shall be payable during or for account 
 of such period." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-12. Wherever in case of injury the right 
 to compensation under this Act would exist in favor 
 of any employe", he shall, upon the written request 
 of his employer, submit from time to time to examina- 
 tion by a regular practicing physician, who shall be 
 provided and paid for by the employer, and shall 
 likewise submit to examination from time to time 
 by any regular physician selected by said industrial 
 accident board, or a member or examiner thereof. 
 The employe shall be entitled to have a physician, 
 provided and paid for by himself, present at any such 
 examination. So long as the employe", after such 
 written request of the employer, shall refuse to sub- 
 mit to such examination, or shall in any way obstruct 
 the same, his right to begin or maintain any proceed- 
 ing for the collection of compensation shall be sus- 
 pended; and if he shall refuse to submit to such ex- 
 amination after direction by the board, or any member 
 or examiner thereof, or shall in any way obstruct the 
 same, his right to the weekly indemnity which shall 
 accrue and become payable during the period of such 
 refusal or obstruction, shall be barred. Any physician 
 who shall make or be present at any such examination 
 may be required to testify as to results thereof."
 
 CHAPTER XXIV 
 
 BY WHOM LAW ADMINISTERED AND HOW AWARDS 
 DETERMINED; FORMS 'OF PETITIONS, ANSWERS 
 AND AWARDS 
 
 Page 
 
 1. Liberal rules as to procedure 397 
 
 2. Right of workman to take out letters of administration on 
 
 estate of deceased employer 397 
 
 3. Specifying amount when making claim for compensation . . 397 
 
 4. Necessity of appointment of guardian ad litem when in- 
 
 terests of incompetent involved 397 
 
 5. Agreement to pay compensation is not a consent to submit 
 
 to arbitration 398 
 
 6. Agreement for compensation bar to arbitration proceedings 399 
 
 7. Effect of agreement to pay compensation "during in- 
 
 capacity" 399 
 
 8. Amending pleadings by arbitration 399 
 
 9. Burden of proving the injury was caused by accident is on 
 
 the workman 399 
 
 10. Inferences in the absence of direct proof 400 
 
 11. Burden of proof as to serious and willful misconduct 403 
 
 12. Evidence 403 
 
 13. Sufficiency of finding of incapacity 404 
 
 14. Finding on question of fact as to which there is any evidence 
 
 to support 404 
 
 15. Suspensory award 406 
 
 16. Award to terminate at specified date in future 407 
 
 17. Admission in answer that compensation has been paid 
 
 amounts to admission of claim made 407 
 
 18. Apportioning compensation among dependents; procedure 407 
 
 19. Enforcing payment of award; body execution 407 
 
 20. New trial; arbitrator cannot grant 408 
 
 396
 
 PROCEDURE IN ADMINISTERING LAW 397 
 
 Appointment of guardian of incompetent 
 
 Page Page 
 
 CALIFORNIA 408 NEW HAMPSHIRE 427 
 
 ILLINOIS 411 NEW JERSEY 428 
 
 KANSAS 412 OHIO 432 
 
 MASSACHUSETTS 416 RHODE ISLAND 438 
 
 MICHIGAN 422 WASHINGTON 442 
 
 NEVADA 426 WISCONSIN 446 
 
 1. Liberal rules as to procedure. 
 
 Documents in arbitration proceedings under the Act 
 should not be treated with the nicety and strictness of 
 pleadings in judicial proceedings in the higher court. 
 Lowe v. M. Myers & Sons (1906), 2 K. B. 265; 8 W. C. 
 C. 22. 
 
 2. Right of workman to take out letters of adminis- 
 
 tration on estate of deceased employer. 
 Where an employer against whom compensation had 
 been awarded died, and his next of kin refused to take 
 out letters of administration, it was held that the work- 
 man who was entitled to compensation could apply to 
 have such letters taken out. Matter of William Byrne, 
 Deceased (1910), 44 Irish L. T. 98; 3 B. W. C. C. 591. 
 
 3. Specifying amount when making claim for com- 
 
 pensation. 
 
 It is unnecessary, in making a claim under the 
 Workmen's Compensation Act, to specify the amount 
 claimed. Thompson v. R. W. Gould & Co. (1910), A. C. 
 409; 103 L. T. 81; 3 B. W. C. C. 392. The last- 
 mentioned case was decided by the House of Lords. 
 
 4. Necessity of appointment of guardian ad litem 
 
 when interests of incompetent involved. 
 Proceedings under the Workmen's Compensation
 
 398 BRADBURY'S WORKMEN'S COMPENSATION i w 
 
 Compensation agreement not arbitration submission 
 
 Act in respect of the death of a workman, were brought 
 on behalf of A, a daughter, who had been residing 
 with him and acting as his housekeeper, and B, his 
 wife, who was then, and had been for many years, an 
 inmate of the district lunatic asylum. The matter was 
 settled as between the employer and A by the employer 
 agreeing to pay 100, which was lodged in court. No 
 guardian ad litem to B having been appointed, an 
 application was made by the resident medical superin- 
 tendent of the asylum of which B was an inmate, to 
 have the said sum of 100 apportioned between A and 
 B, on the bases of both of them being dependents of 
 the deceased. It was held on appeal that as no guard- 
 ian ad litem had been appointed for the lunatic neither 
 the respondent nor the lunatic were before the court 
 and there was no jurisdiction to make any order. 
 Kerr and another v. Stewart (1909), 43 Irish L. T. 119; 
 2 B. W. C. C. 454. 
 
 6. Agreement to pay compensation is not a consent 
 to submit to arbitration. 
 
 On an application to register a memorandum of 
 agreement to pay compensation the judge has no 
 power to alter the amount and treat that agreement as 
 a submission by the employer to pay any sum the 
 judge thinks reasonable. Hall v. Furness, Withy & 
 Co. (1909), 3 B. W. C. C. 72. When a memorandum of 
 agreement has been presented to be recorded, the 
 judge has no power to do more than declare whether or 
 not the memorandum is one which ought to be recorded 
 and he has no power to make any substantive order 
 dealing with the whole matter, or to treat the agree- 
 ment as a submission by the employer to pay any sum
 
 399 
 
 Burden of proof 
 
 which the judge under the circumstances may think 
 just and proper. Mortimer v. Secretan (1909), 100 
 L. T. 721 ; 2 B. W. C. C. 446. 
 
 6. Agreement for compensation bar to arbitration 
 
 proceedings. 
 
 An implied agreement for compensation is a bar to 
 proceedings in arbitration. Busby v. Richardson 
 (1901), 3 W. C. C. 54. 
 
 7. Effect of agreement to pay compensation " during 
 
 incapacity." 
 
 Where an agreement has been entered into, whereby 
 the employers agree to pay compensation "during the 
 time of the incapacity of the workman," and the em- 
 ployers thereafter cease payments, the employers may 
 show in any proceeding by the workman to recover 
 compensation for the period subsequent to the time 
 of suspension of payments, that the incapacity ceased 
 when the payments were discontinued. Ibrahim Said 
 v. J. H. Welsford & Co. (1910), 3 B. W. C. C. 233. 
 
 8. Amending pleadings by arbitrator. 
 
 Under the British Columbia Compensation Act of 
 1902 an arbitrator has the same power to amend plead- 
 ings in the proceeding as a judge has in a civil action. 
 Moore v. Crow's Nest Pass Coal Company (1910), 15 
 Br. C. R. 391; 4 B. W. C. C. 451. 
 
 9. Burden of proving the injury was caused by acci- 
 
 dent is on the workman. 
 
 A collier died of apoplexy during work hours in a 
 mine. The majority of the doctors said that his arteries
 
 400 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Inferences in the absence of direct proof 
 
 were in a very diseased condition, and that apoplexy 
 might have come upon him when asleep in bed, or 
 when walking about, or when over-exerting himself. 
 There was no evidence that the apoplexy came upon 
 him when he was incurring a strain. It was held that 
 as the evidence as to the cause of death was equally 
 consistent with an accident, and with no accident, the 
 applicants for compensation had not discharged the 
 onus of proving it, which was upon them. Barnabas 
 v. Bersham Colliery Co. (1910), 102 L. T. R. 621 ; 3 B. W. 
 C. C. 216. Where a bus driver fell from the bus and 
 there was conflicting medical evidence as to the cause 
 of death, it was held that the burden was on the de- 
 pendent to prove that death was caused by accident, 
 and as this burden had not been sustained compensa- 
 tion was refused. Thackway v. Connelly and Sons 
 (1909), 3 B. W. C. C. 37. In the last-mentioned case 
 the court laid down the rule, citing several other de- 
 cisions, that it is incumbent upon the plaintiff to 
 make out that the accident in respect of which com- 
 pensation is claimed, arose out of and in the course of 
 the injured man's employment, not upon the employer 
 to prove the contrary. 
 
 10. Inferences in the absence of direct proof. 
 
 Even though there is no direct evidence that an 
 injury to a workman arose out of and in the course of 
 his employment an inference to this effect may be 
 drawn where the known facts are more consistent with 
 the theory that the injury did so arise than with the 
 theory that the accident occurred in some other manner. 
 Mitchell v. Glamorgan Coal Co. (1907), 23 T. L. R. 588; 
 9 W. C. C. 16. In the case last cited the workman, a
 
 PROCEDURE IN ADMINISTERING LAW 401 
 
 Inference in the absence of direct proof 
 
 miner, returned home in his working clothes, with 
 one finger crushed. The applicant for compensation 
 dressed the wound and the workman returned to work 
 for a few days when blood poisoning set in and he died. 
 The court held that while it was possible that the 
 workman was injured on his way home the court 
 would be justified on the facts stated to draw the in- 
 ference that the workman was injured in the course of 
 his employment. 
 
 A man of seventy was employed at an undertaker's, 
 part of his duty being to lift coffins. He went to work 
 one day apparently well, and on his return home com- 
 plained to his wife of having been hurt that day; 
 there were marks upon his side and chest, and his leg 
 was swollen. He died about a week afterward, from 
 pneumonia supervening on pleurisy caused by injury. 
 There was no direct evidence showing that an accident 
 had been sustained by the deceased in the course of his 
 employment. It was held that there was evidence to 
 support the inference that the man died from accident. 
 Wright v. Kerrigan (1911), 45 Irish L. T. 82; 4 B. W. 
 C. C. 432. In this case one of the judges said as to 
 the admissibility of statements made by a deceased to 
 his doctor, with regard to his bodily injuries and their 
 immediate cause: "Such statements are invariably ad- 
 mitted on various grounds, the chief of which is that 
 there is no other possible evidence. Those statements 
 made, not necessarily to a doctor, but to any person, as 
 to bodily injuries, are admissible." 
 
 The chief officer of a steam vessel fell overboard be- 
 tween 7 and 8 A. M. on a fine morning, at a time when 
 he was on duty and in charge of the vessel on deck. No 
 one saw him fall overboard. Before 7 A. M. and during 
 26
 
 402 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Inferences in the absence of direct proof 
 
 his watch, which commenced at 4 A. M., he had gone 
 below complaining of a headache and giddiness, and 
 had taken a dose of castor oil, but had returned to his 
 duty on deck. The County Court judge, in the ab- 
 sence of direct evidence as to how the accident hap- 
 pened, inferred that it arose out of, as well as in the 
 course of the employment. It was held that the judge 
 was justified by the balance of the probability in draw- 
 ing this inference. Owners of Steamship "Swansea 
 Vale" v. Rice (1911), 104 L. T. 658; 4 B. W. C. C. 298. 
 
 The fact of a seaman's disappearance from his vessel, 
 and his unexplained drowning, does not raise a prima 
 facie inference that he met with an accident arising out 
 of as well as in the course of his employment. A sailor 
 having gone on deck from his cabin in the course of his 
 employment on a hot night for the purpose of getting 
 some fresh air, disappeared, and the next day his body 
 was found in the tidal basin close to the ship. It was 
 held that the applicant had not complied with the onus 
 resting upon her of proving that the accident arose out 
 of as well as in the course of the employment, and she 
 was not entitled to compensation. Marshall v. Owners 
 of Ship "Wild Rose" (1909), 100 L. T. 739; 2 B. W. C. 
 C. 76. 
 
 A workman received an injury in the course of his 
 employment, which necessitated the amputation of 
 one of his fingers. He was put under anaesthetics and 
 the finger was amputated. As he was recovering from 
 the effects of the anaesthetics the surgeons decided to 
 remove a bad tooth of which the workman had com- 
 plained; further anaesthetics were administered, and 
 an unsuccessful attempt was made to remove the 
 tooth. The workman shortly afterwards died. It was
 
 PROCEDURE IN ADMINISTERING LAW 403 
 
 Evidence 
 
 held that it was as probable that death resulted from 
 a spasm induced by an attempt to swallow oozing 
 blood in his mouth, as that it resulted from the an- 
 aesthetic for the first operation, and consequently that 
 the widow had not discharged the onus which rested 
 upon her of proving that the workman's death resulted 
 from his injury by the accident. Charles v. Walker 
 (1909), 25 T. L. R. 609; 2 B. W. C. C. 5. 
 
 A sailor on board ship in a harbor went on deck late 
 at night to get some fresh air. He was found dead in 
 the water in the morning. It was held that the mere 
 fact of a seaman disappearing from his ship and being 
 found drowned alongside is not sufficient to discharge 
 the onus of proving that the accident arose out of the 
 employment. (House of Lords), Marshall v. Owners of 
 Ship "Wild Rose" (1910), 3 B. W. C. C. 514. 
 
 11. Burden of proof as to serious and willful miscon- 
 duct. 
 
 The burden of proving that the workman has been 
 guilty of serious and willful misconduct is on the em- 
 ployer who sets it up as a reason for refusing compensa- 
 tion. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 
 828 ; 8 W. C. C. 10. 
 
 12. Evidence. 
 
 The statement made by an employe" in the absence 
 of his employer, by a deceased man, as to his bodily or 
 mental feelings, are admissible in evidence, but those 
 made as to the cause of his illness are not admissible in 
 evidence and where there is no other evidence of an 
 accident arising out of and in the course of the em- 
 ployment than statements made by a deceased em-
 
 404 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Findings of fact; evidence to support 
 
 ploye in the absence of his employer, an award cannot 
 be sustained. Gilbey v. The Great Western Railway Co. 
 (1910), 102 L. T. 202; 3 B. W. C. C. 135. A statement 
 made by a deceased workman to a fellow workman as to 
 the cause of the injury he received, is not admissible 
 in evidence. Penn v. Spiers & Pond (1908), 1 B. W. 
 C. C. 401. But see Wright v. Kerrigan (1911), 45 Irish 
 L. T. 82; 4 B. W. C. G. 432, referred to ante, page 
 401. 
 
 13. Sufficiency of finding of incapacity. 
 
 A rinding that a workman was incapacitated "for 
 work at his trade of stone breaking by the loss of an 
 eye" was held to be in effect a rinding that he was 
 incapacitated "for work." Boyd v. Doharty (1908), 46 
 Scotch L. R. 71; 2 B. W. C. C. 257. 
 
 14. Finding on question of fact as to which there is 
 any evidence to support. 
 
 A workman while engaged in carrying joists for a 
 house, fainted, and subsequently died. Medical wit- 
 nesses for the workman gave it as their opinion that 
 death was due to rupture of the heart caused by the 
 work, while medical witnesses for the employers gave it 
 as their opinion that death was due to heart disease. 
 The arbitrator, in consequence of this evidence, sub- 
 mitted the matter to a medical referee to report. The 
 medical referee reported that the workman died from 
 disease of the heart. The arbitrator found that the 
 workman died from a rupture of the heart, caused by 
 the strain of the work and awarded compensation. It 
 was held that the arbitrator was not bound to accept 
 the medical referee's report as conclusive, and that,
 
 PROCEDURE IN ADMINISTERING LAW 405 
 
 Findings of fact; evidence to support 
 
 as there was some evidence to justify the award, it 
 must stand. Scotstoun Estate Co. v. Jackson (1911), 
 48 Scotch L. R. 440; 4 B. W. C. C. 381. In the last- 
 mentioned case the court said: " There is nothing 
 in the statute that in any way absolves the arbitrator 
 from his duty as arbitrator. It is only a report that he 
 gets from the medical referee, and therefore I think it 
 would be impossible to affirm that the arbitrator was 
 bound to accept the medical referee's report or opinion, 
 that is to say, to accept it as conclusive of the whole 
 matter. He gets a report, and must weigh that report 
 just as he weighs the rest of the evidence." 
 
 A collier was injured in 1903, and after five months' 
 absence returned to work; some of the work he then 
 did was heavier than his work before the accident. He 
 was dismissed in 1909, and claimed compensation on 
 the ground that the consequences of his injury pre- 
 vented him from obtaining work. The medical evidence 
 was conflicting, and the case was referred to a medical 
 referee, who reported that the man was fit for full work, 
 but more liable to strains than before the accident. 
 On this report the County Court judge made an award 
 of one penny a week. It was held on appeal that the 
 matter was a pure question of fact and that there was 
 evidence to justify the County Court judge's award. 
 Wells v. Cardiff Steam Coal Collieries Co. (1909), 3 B. 
 W. C. C. 104. 
 
 A workman while engaged in laying drain pipes, was 
 struck on the back by a stone and was injured. A day 
 or two afterwards he was seen by a doctor, who diag- 
 nosed pneumonia, and sent him to a hospital, where 
 he remained for three days, when he insisted on being 
 taken home. He was accordingly assisted home, a dis-
 
 406 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Suspensory award 
 
 tance of some ten minutes' walk, by some neighbors. 
 This was done in spite of warning by the doctor in 
 attendance at the hospital that such a course was 
 dangerous to life. He died two days afterward. Upon 
 an application by his widow for compensation the ar- 
 bitrator found that death resulted from the accident. 
 It was held that there was evidence to support the 
 finding. Dunnigan v. Cavan & Lind (1911), 48 Scotch 
 L. R. 459; 4 B. W. C. C. 386. 
 
 An injured workman was paid compensation for 
 sixty-one weeks by his employers. Subsequently the 
 employers offered the workman light work, which he 
 refused, without attempting to do it. The County 
 Court judge held that the workman had acted unrea- 
 sonably in refusing to go and see what the work offered 
 was, and that, if he had accepted the offer and returned 
 to work, by the date of the arbitration he would have 
 been under no disability. He therefore stopped com- 
 pensation, but made a declaration of liability. It was 
 held on appeal that the decision was on a question of 
 fact, and that there was evidence to support it. Fur- 
 ness, Withy & Co. v. Bennett (1910), 3 B. W. C. C. 195. 
 
 Where the County Court judge holds that the work- 
 man is shamming, and there is evidence to support_the 
 decision, this is a question of fact with which the Court 
 of Appeal will not interfere. Roberts v. Benham (1910), 
 3 B. W. C. C. 430. 
 
 X. 
 
 15. Suspensory award. 
 
 A suspensory award should be made where, although 
 the man can work, yet the bad effects of the accident 
 still remain. So held, where a seaman was ruptured and 
 a medical referee reported that he was fit for his full
 
 PROCEDURE IN ADMINISTERING LAW 407 
 
 Enforcing payment of award; body execution 
 
 work but must wear a truss. Griga v. Owners of Ship 
 "Harelda" (1910), 26 T. L. R. 272; 3 B. W. C. C. 116. 
 
 16. Award to terminate at specified date in future. 
 
 The judge has no power to make an award which 
 shall continue for a certain length of time and then 
 terminate on a date mentioned in the future. Baker v. 
 Jewell (1910), 3 B. W. C. C. 503. 
 
 17. Admission in answer that compensation has been 
 
 paid amounts to admission of claim made. 
 A statement in an answer that compensation has 
 been paid is an admission of fact and evidence that a 
 claim has been made. Lowe v. Myers & Son {1906), 
 95 L. T. 35; 8 W. C. C. 22. 
 
 18. Apportioning compensation among dependents; 
 procedure. 
 
 Where an employer has agreed with dependents as to 
 the amount of compensation, arbitration under the 
 Act, naming the employer as respondent, is not neces- 
 sary to enable such amount to be apportioned among 
 the dependents of the deceased, but the sum should be 
 brought in and lodged in the County Court to the 
 credit of the applicants and respondents. Harland & 
 Wolff v. Radcliffe (1909), 43 Irish L. T. 166; 2 B. W. 
 C. C. 374; Rhodes v. Soothill Wood Colliery Co. (1908), 
 100 L. T. 15; 2 B. W. C. C. 377. 
 
 19. Enforcing payment of award; body execution. 
 
 A committal order on a judgment summons can be 
 made in order to enforce an award. Johnson v. Ads- 
 head, 2 W. C. C. 158. An award for compensation may
 
 408 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 be enforced by a committal order under the Debtor's 
 Act. Bailey v. Plant (1900), 3 W. C. C. 209. 
 
 20. New trial; arbitrator cannot grant. 
 
 An arbitrator has no power to grant a rehearing in 
 the nature of a new trial of an action after he has made 
 his award, as he sits as an arbitrator and not as a 
 judge. Mountain v. Parr (1899), 80 L. T. 342; 1 W. 
 C. C. 110. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 12. Any dispute or controversy concerning 
 compensation under this Act, including any in which 
 the State may be a party, shall be submitted to a 
 board consisting of three members, which shall be 
 known as the industrial accident board. Within 
 thirty days before this Act shall take effect, the 
 governor, by and with the advice and consent of the 
 senate, shall appoint a member who shall serve two 
 years, and another who shall serve three years, and 
 another who shall serve four years. Thereafter such 
 three members shall be appointed and confirmed 
 for terms of four years each. Vacancies shall be filled 
 in the same manner for the unexpired term. Each 
 member of the board, before entering upon the duties 
 of his office, shall take the oath prescribed by the 
 constitution. A majority of the board shall consti- 
 tute a quorum for the exercise of any of the powers 
 or authority conferred by this Act, and an award 
 by a majority shall be valid. In case of a vacancy, 
 the remaining two members of the board shall ex- 
 ercise all the powers and authority of the board until 
 such vacancy is filled. Each member of the board
 
 PROCEDURE IN ADMINISTERING LAW 409 
 
 California 
 
 shall receive an annual salary of three thousand six 
 hundred dollars." 
 
 " 13. The board shall organize by choosing one 
 of its members as chairman. Subject to the provisions 
 of this Act, it may adopt its own rules of procedure 
 and may change the same from time to time in its 
 discretion. The board, when it shall deem it necessary 
 to expedite its business, may from time to time 
 employ one or more expert examiners for such length 
 of time as may be required. It may also appoint 
 a secretary and such clerical help as it may deem 
 necessary. It shall fix the compensation of all as- 
 sistants so appointed. " 
 
 " 14. The board shall keep its office at the city 
 of San Francisco, and shall be provided by the secre- 
 tary of state with a suitable room or rooms, necessary 
 office furniture, stationery, and other supplies. The 
 members of the board and its assistants, shall be en- 
 titled to receive from the state their actual and nec- 
 essary expenses while traveling on the business of the 
 board, but such expenses shall be sworn to by the 
 person who incurred the same, and be approved by the 
 chairman of the board, before payment is made. All 
 salaries and expenses authorized by this Act shall be 
 audited and paid out of the general funds of the state 
 the same as other general state expenses are audited 
 and paid." 
 
 " 15. Upon the filing with the board by any party 
 in interest of an application in writing stating the 
 general nature of any dispute or controversy concern- 
 ing compensation under this act, it shall fix a time for 
 the hearing thereof, which shall not be more than 
 forty days after the filing of such application. The 
 board shall cause notice of such hearing to be given 
 to each party interested by service of such notice on
 
 410 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 him personally or by mailing a copy thereof to him at 
 his last known post office address at least ten days 
 before such hearing. Such hearing may be adjourned 
 from time to time in the discretion of the board, and 
 hearings shall be held at such places as the board shall 
 designate. Either party shall have the right to be 
 present at any hearing, in person or by attorney or any 
 other agent, and to present such testimony as shall be 
 pertinent to the controversy before the board, but the 
 board may, with or without notice to either party, 
 cause testimony to be taken, or inspection of the 
 premises where the injury occurred to be had, or the 
 time books and payroll of the employer to be examined 
 by any member of the board or any examiner ap- 
 pointed by it, and may from time to time, direct any 
 employe* claiming compensation to be examined by a 
 regular physician; the testimony so taken and the 
 results of any such inspection or examination, to be 
 reported to the board for its consideration upon final 
 hearing. The board, or any member thereof, or any 
 examiner appointed thereby shall have power and au- 
 thority to issue subpcenas to compel the attendance of 
 witnesses or parties, and the production of books, 
 papers, or records, and to administer oaths. Obedi- 
 ence to such subpcenas shall be enforced by the su- 
 perior court of any county, or city and county. 
 
 " 16. After final hearing by said board, it shall 
 make and file (1) its findings upon all facts involved in 
 the controversy, and (2) its awards, which shall state 
 its determination as to the rights of the party. 
 
 " 17. Either party may present a certified copy of 
 the award to the superior court for any county or city 
 and county, whereupon said court shall, without 
 notice, render a judgment in accordance therewith, 
 which judgment, until and unless set aside as herein-
 
 PROCEDURE IN ADMINISTERING LAW 411 
 
 Illinois 
 
 after provided, shall have the same effect as though 
 duly rendered in an action duly tried and determined 
 by said court, and shall, with the like effect, be entered 
 and docketed." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 10. Any question of law or fact arising in regard 
 to the application of this law in determining the com- 
 pensation payable hereunder shall be determined 
 either by agreement of the parties or by arbitration as 
 herein, provided. In case any such question arises 
 which cannot be settled by agreement, the employe" 
 and the employer shall each select a disinterested 
 party and the judge of the county court or other 
 court of competent jurisdiction, of the county where 
 the injured employ 4 resided or worked at the time 
 of the in-jury, shall appoint a third disinterested party, 
 such persons to constitute a Board of Arbitrators 
 for the purpose of hearing and determining all such 
 disputed questions of law or fact arising in regard 
 to the application of this law in determining the com- 
 pensation payable hereunder; and it shall be the duty 
 of both employe* and employer to submit to such 
 Board of Arbitrators not later than ten days after 
 the selection and appointment of such arbitrators 
 all facts or evidence which may be in their possession 
 or under their control, relating to the questions 
 to be determined by said arbitrators; and said Board 
 of Arbitrators shall hear all the evidence submitted 
 by both parties and they shall have access to any 
 books, papers or records of either the employer or 
 the employe" showing any facts which mav be material 
 to the questions before them, and they shall be em-
 
 412 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 powered to visit the place or plant where the accident 
 occurred, to direct the injured employ 6 to be examined 
 by a regular practicing physician or surgeon, and to 
 do all other acts reasonably necessary for a proper 
 investigation of all matters in dispute. A copy of 
 the report of the arbitrators in each case shall be 
 prepared and filed by them with the State Bureau 
 of Labor Statistics, and shall be binding upon both 
 the employer and employe" except for fraud and 
 mistake: PROVIDED, that either party to such ar- 
 bitration shall have the right to appeal from such 
 report or award of the arbitrators to the Circuit 
 Court or the court that appointed the third arbitrator 
 of the county where the injury occurred by filing 
 a petition in such court within twenty days after the 
 filing of the report of the arbitrators, and upon filing 
 a good and sufficient bond in the discretion of the 
 court, and upon such appeal the questions in dispute 
 shall be heard de novo, and either party may have a 
 jury upon filing a written demand therefor with his 
 petition." 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 "23. Agreements. Compensation due under this 
 Act may be settled by agreement. Every such agree- 
 ment, other than a release, shall be in the form 
 hereinafter provided." 
 
 " 24. Arbitrations. If compensation be not so 
 settled by agreement: (a) If any committee represent- 
 ative of the employer and the workman exists, or- 
 ganized for the purpose of settling disputes under 
 this Act, the matter shall, unless either party objects 
 by notice in writing delivered or sent by registered
 
 PROCEDURE IN ADMINISTERING LAW 413 
 
 Kansas 
 
 mail to the other party before the committee meets 
 to consider the matter, be settled in accordance with 
 its rules by such committee or by an arbitrator se- 
 lected by it. (6) If either party so objects, or there 
 is no such committee, or the committee or the ar- 
 bitrator to whom it refers the matter fails to settle it 
 within sixty days from the date of the claim, the 
 matter may be settled by a single arbitrator agreed 
 upon by the parties, or appointed by any judge of a 
 court where an action might be maintained. The 
 consent to arbitration shall be in writing and signed 
 by the parties and may limit the fees of the arbitrator 
 and the time within which the award must be made. 
 And unless such consent and the order of appoint- 
 ment expressly refers other questions, only the 
 question of the amount of compensation shall be 
 deemed to be in issue. 
 
 " 25. The duties of arbitrator. The arbitrator 
 shall not be bound by technical rules of procedure 
 or evidence, but shall give the parties reasonable 
 opportunity to be heard and act reasonably and with- 
 out partiality. He shall make and file his award with 
 the consent to arbitration attached in the office of the 
 clerk of the proper district court within the time 
 limited in the consent, or if no time limit is fixed there- 
 in, within sixty days after his selection, and shall 
 give notice of such filing to the parties by mail. 
 
 " 26. Arbitrator's fees. The arbitrator's fees shall 
 be fixed by the consent to arbitration or be agreed 
 to by the parties before the arbitration, and if not so 
 fixed or agreed to, they shall not exceed $10.00 per 
 day, for not to exceed ten days, and disbursements 
 for expense. The arbitrator shall tax or apportion 
 the costs of such fees in his discretion and shall add 
 the amount taxed or apportioned against the employer
 
 414 BRADBURY'S WORKMEN'S COMPENSATION IAW 
 
 Kansas 
 
 to the first payment made under the award, and he 
 shall note the amount of his fees on the award and 
 shall have a lien therefor on the first payments due 
 under the award. 
 
 "27. Form of agreements and award. Every 
 agreement for compensation and every award shall 
 be in writing, signed and acknowledged by the parties 
 or by the arbitrator or secretary of the committee 
 hereinbefore referred to, and shall specify the amount 
 due and unpaid by the employer to the workman 
 up to the date of the agreement or award, and if any, 
 the amount of the payments thereafter to be paid 
 by the employer to the workman and the length of 
 time such payments shall continue." 
 
 " 28. Filing agreements, awards, etc. It shall be 
 the duty of the employer to file or cause to be filed 
 every release of liability hereunder, every agreement 
 for or award of compensation, or modifying an agree- 
 ment for or award of compensation, under this Act, 
 if not filed by the committee or arbitrator, to which 
 he is a party, or a sworn copy thereof, in the office 
 of the district court in the county in which the acci- 
 dent occurred within sixty days after it is made, 
 otherwise it shall be void as against the workman. 
 The said clerk shall accept, receipt for, and file any 
 such release, agreement or award, without fee, and 
 record and index it in the book kept for that purpose. 
 Nothing herein shall be construed to prevent the work- 
 man from filing such agreement or award." 
 
 "30. Staying proceedings upon agreement or award. 
 At any time after the filing of an agreement or award 
 and before judgment has been granted thereon, the 
 employer may stay proceedings thereon by filing in 
 the office of the clerk of the district court wherein 
 such agreements or award is filed : (a) , A proper
 
 PROCEDURE IN ADMINISTERING LAW 415 
 
 Kansas 
 
 certificate of a qualified insurance company that the 
 amount of the compensation to the workman is in- 
 sured by it: (6) A proper bond undertaking to secure 
 the payment of the compensation. Such certificate 
 or bond shall first be approved by a judge of the said 
 district court." 
 
 "35. Courts. All references hereinbefore to a 
 district court of the State of Kansas having juris- 
 diction of a civil action between the parties shall be 
 construed as relating to the then existing code of 
 civil procedure. Such court shall make all rules 
 necessary and appropriate to carry out the provisions 
 of this Act." 
 
 "36. Actions. A workman's right to compensa- 
 tion under this Act, may, in default of agreement or 
 arbitration, be determined and enforced by action in 
 any court of competent jurisdiction. In every such 
 action the right to trial by jury shall be deemed 
 waived and the case tried by the court without a jury, 
 unless either party, with his notice of trial, or when 
 the case is placed upon the calendar demand a jury 
 trial. The judgment in the action, if in favor of the 
 plaintiff, shall be for a lump sum equal to the amount 
 of the payments then due and prospectively due under 
 this Act, with interest on the payments overdue, or, 
 in the discretion of the trial judge, for periodical 
 payments as in an award. Where death results from 
 injury, the action shall be brought by the dependent 
 or dependents entitled to the compensation or by the 
 legal representative of the deceased for the benefit 
 of the dependents as herein defined; and in such 
 action the judgment may provide for the proportion 
 of the award to be distributed to or between the several 
 dependents; otherwise such proportions shall be de- 
 termined by the proper probate court. An action
 
 416 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 to set aside a release or other discharge of liability 
 on the ground of fraud or mental incompetency may 
 be joined with an action for compensation under this 
 Act. No action or proceeding provided for in this 
 Act shall be brought or maintained outside of the 
 State of Kansas, and notice thereof may be given by 
 publication against nonresidents of the state in the 
 manner now provided by article 7 of chapter 95, 
 General Statutes of Kansas of 1909 so far as the same 
 may be applicable, and by personal service of a true 
 copy of the first publication within twenty-one days 
 after the date of the said first publication unless ex- 
 cused by the court upon proper showing that such 
 service cannot be made." 
 
 (L. 1911, c. 751) 
 
 The Massachusetts plan is peculiar to that Common- 
 wealth. It is not state insurance, like that prevailing 
 in the State of Washington. On the other hand, an 
 employer cannot embrace the compensation principle 
 as to his own employes and have any individual control 
 over the administration of the payments of compensa- 
 tion under the statute. The Act provides for the in- 
 corporation of a mutual association known as the Mas- 
 sachusetts Employees' Insurance Association. It is 
 entirely self sustaining both as to administration ex- 
 penses and the sums paid by way of compensation to 
 injured workmen. Its income is derived from pre- 
 miums, or assessments, collected from employers. The 
 first directors are appointed by the Governor. Subse- 
 quently they are elected from among the subscribing 
 employers. Any employer in the Commonwealth of
 
 PROCEDURE IN ADMINISTERING LAW 417 
 
 Massachusetts 
 
 Massachusetts may become a subscriber. While the 
 Association is charged with the obligation to raise 
 funds to pay administration expenses and awards of 
 compensation to the injured workmen of its subscribers, 
 it has no direct voice in making the payments to such 
 workmen. These awards are all determined upon under 
 the virtual direction of the Industrial Accident Board, 
 a state institution, the members of which are appointed 
 by the Governor with the advice and consent of the 
 Council. The Association and an injured workman 
 cannot even agree upon the amount of an award for 
 compensation without the approval of the Industrial 
 Accident Board. (Part III, 4.) In case of disagree- 
 ment between the Association and the workman three 
 arbitrators, one of whom must be, and all of whom may 
 be, members of the Industrial Accident Board, are 
 appointed to determine the controversy. From an 
 award made by these arbitrators an appeal lies as in 
 cases of judgments of the Superior Court. "Any 
 weekly payment under this Act may be reviewed by 
 the Industrial Accident Board at the request of the 
 Association or of the employe; and on such review it 
 may be ended, diminished or increased, subject to the 
 maximum and minimum amounts above provided, if 
 the board finds that the condition of the employe war- 
 rants such action." Part III, 12. 
 
 "PART III 
 "PROCEDURE 
 
 " 1. There shall be an industrial accident board 
 consisting of five members, to be appointed by the 
 governor, by and with the advice and consent of the 
 
 27
 
 418 BRADBURY'S WORKMEN s COMPENSATION LAW 
 
 Massachusetts 
 
 council, one of whom shall be designated by the 
 governor as chairman. The term of office of members 
 of this board shall be five years, except that when 
 first constituted one member shall be appointed 
 for one year, one for two years, one for three years, 
 one for four years, and one for five years. Thereafter 
 one member shall be appointed every year for the full 
 term of five years. (As amended by L. 1912, c. 571.) 
 
 " 2. The salaries and expenses of the board shall 
 be paid by the commonwealth. The salary of the 
 chairman shall be five thousand dollars a year, and 
 the salary of the other members shall be forty-five 
 hundred dollars a year each. The board may appoint 
 a secretary at a salary of not more than three thou- 
 sand dollars a year, and may remove him. It shall 
 also be allowed an annual sum, not exceeding ten 
 thousand dollars, for clerical service, and traveling 
 and other necessary expenses. The board shall be 
 provided with an office in the state house or in some 
 other suitable building in the city of Boston, in which 
 its records shall be kept. (As amended by L. 1912, 
 c. 571.) 
 
 " 3. The board may make rules not inconsistent 
 with this Act for carrying out the provisions of the 
 Act. Process and procedure under this Act shall be 
 as summary as reasonably may be. The board or 
 any member thereof shall have the power to subpoena 
 witnesses, administer oaths and to examine such parts 
 of the books and records of the parties to a proceed- 
 ing as relate to questions in dispute. The fees for at- 
 tending as a witness before the industrial accident 
 board shall be one dollar and fifty cents a day; for 
 attending before an arbitration committee fifty cents 
 a day; in both cases five cents a mile for travel out 
 and home.
 
 PROCEDURE IN ADMINISTERING LAW 419 
 
 Massachusetts 
 
 "The superior court shall have power to enforce by 
 proper proceedings the provisions of this section re- 
 lating to the attendance and testimony of witnesses 
 and the examination of books and records, so as to 
 read as follows: Section 3. The board may make rules 
 not inconsistent with this act for carrying out the 
 provisions of the act. Process and procedure under 
 this act shall be as summary as reasonably may be. 
 The board or any member thereof shall have the 
 power to subpoana witnesses, administer oaths and 
 to examine such parts of the books and records of the 
 parties to a proceeding as relate to questions in dis- 
 pute. The fees for attending as a witness before the 
 industrial accident board shall be one dollar and 
 fifty cents a day, for attending before an arbitration 
 committee fifty cents a day; in both cases five cents 
 a mile for travel out and home. 
 
 "The superior court shall have power to enforce 
 by proper proceedings the provisions of this section 
 relating to the attendance and testimony of wit- 
 nesses and the examination of books and records." 
 (As amended by L. 1912, c. 571.) 
 
 "4. If the association and the injured employe" 
 reach an agreement in regard to compensation under 
 this Act, a memorandum of the agreement shall be 
 filed with the industrial accident board and, if ap- 
 proved by it, thereupon the memorandum shall for 
 all purposes be enforceable under the provisions of 
 Part III, section eleven. Such agreements shall be 
 approved by said board only when the terms conform 
 to the provisions of this Act. (As amended by L. 
 1912, c. 571.) 
 
 "5. If the association and the injured employe" 
 fail to reach an agreement in regard to compensation 
 under this Act, either party may notify the industrial
 
 420 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 accident board who shall thereupon call for the 
 formation of a committee of arbitration. The com- 
 mittee of arbitration shall consist of three members, 
 one of whom shall be a member of the industrial 
 accident board, and shall act as chairman. The other 
 two members shall be named, respectively, by the 
 two parties. If the subscriber has appeared under 
 the provisions of Part II, section three, the member 
 named by the association shall be subject to his ap- 
 proval. If a vacancy occurs it shall be filled by the 
 party whose representative is unable to act. 
 
 "The arbitrators appointed by the parties shall be 
 sworn by the chairman as follows: I do 
 
 solemnly swear that I will faithfully perform my 
 duty as arbitrator and will not be influenced in my 
 decision by any feeling of friendship or partiality 
 toward either party. So help me God. (As amended 
 by L. 1912, c. 571.) 
 
 " 6. It shall be the duty of the industrial accident 
 board, upon notification that the parties have failed 
 to reach an agreement, to request both parties to 
 appoint their respective representatives on the com- 
 mittee of arbitration. The board shall designate 
 one of its members to act as chairman, and, if either 
 party does not appoint its member on this committee 
 within seven days after notification, as above pro- 
 vided, or after a vacancy has occurred the board or 
 any member thereof shall fill the vacancy and notify 
 the parties to that effect. (As amended by L. 1912, 
 c. 571.) 
 
 "7. The committee on arbitration shall make 
 such inquiries and investigations as it shall deem 
 necessary. The hearings of the committee shall be 
 held at the city or town where the injury occurred, 
 and the decision of the committee, together with a
 
 PROCEDURE IN ADMINISTERING LAW 421 
 
 Massachusetts 
 
 statement of the evidence submitted before it, its 
 findings of fact, rulings of law and any other matters 
 pertinent to questions arising before it, shall be filed 
 with the industrial accident board. Unless a claim 
 for review is filed by either party within seven days, 
 the decision shall be enforceable under the provisions 
 of Part III, section eleven. (As amended by L. 1912, 
 c. 571.) 
 
 " 8. The industrial accident board or any mem- 
 ber thereof may appoint a duly qualified impartial 
 physician to examine the injured employe" and to 
 report. The fee for this service shall be five dollars 
 and traveling expenses, but the board may allow ad- 
 ditional reasonable amounts in extraordinary cases. 
 
 " 9. The arbitrators named by or for the parties 
 to the dispute shall each receive five dollars as a fee 
 for his services, but the industrial accident board or 
 any member thereof may allow additional reasonable 
 amounts in extraordinary cases. The fees shall be 
 paid by the association, which shall deduct an amount 
 equal to one-third of the sum from any compensation 
 found due the employe". 
 
 " 10. If a claim for a review is filed, as provided 
 in Part III, section seven, the board shall hear the 
 parties and file its decision with the records of the 
 proceedings. 
 
 "11. There shall be a right of appeal to the su- 
 preme judicial court on questions of law, and the in- 
 dustrial accident board may report questions of law 
 to the supreme judicial court for its determination. 
 
 " 12. Any weekly payment under this Act may 
 be reviewed by the industrial accident board at the 
 request of the association or of the employe"; and on 
 such review it may be ended, diminished or increased, 
 subject to the maximum and minimum amounts
 
 422 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 above provided, if the board finds that the condition 
 of the employe warrants such action." 
 
 " 16. All questions arising under this Act, if not 
 settled by agreement by the parties interested therein, 
 shall, except as otherwise herein provided, be deter- 
 mined by the industrial accident board. The de- 
 cisions of the industrial accident board shall for all 
 purposes be enforceable as if they were decrees of the 
 Superior Court." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 "PART III 
 " PROCEDURE 
 
 1. There is hereby created a board which shall be 
 known as the Industrial Accident Board, consisting 
 of three members to be appointed by the governor, 
 by and with the consent of the senate, one of whom 
 shall be designated by the governor as chairman. 
 Appointments to fill vacancies may be made during 
 recesses of the senate, but shall be subject to con- 
 firmation by the senate at the next ensuing session of 
 the legislature. The term of office of members of this 
 board shall be six years, except that when first con- 
 stituted one member shall be appointed for two years, 
 one for four years, and one for six years. Thereafter 
 one member shall be appointed every second year for 
 the full term of six years. No more than two mem- 
 bers of this board shall belong to the same political 
 party. 
 
 " 2. The salary of each of the members so ap- 
 pointed by the governor shall be three thousand five 
 hundred dollars per year. The board may appoint a 
 secretary at a salary of not more than two thousand
 
 PROCEDURE IN ADMINISTERING LAW 423 
 
 Michigan 
 
 five hundred dollars a year, and may remove him. 
 The board shall be provided with an office in the 
 capitol, or in some other suitable building in the city 
 of Lansing, in which its records shall be kept, and it 
 shall also be provided with necessary office furniture, 
 stationery and other supplies. It shall provide itself 
 with a seal for the authentication of its orders, awards 
 and proceedings, upon which shall be inscribed the 
 words "Industrial Accident Board Michigan Seal." 
 It shall employ such assistants and clerical help as it 
 may deem necessary and fix the compensation of all 
 persons so employed: Provided, That the average 
 compensation paid to such employe shall not exceed 
 one thousand dollars per annum for each person 
 employed, and all such clerical assistants shall be sub- 
 ject to existing laws regulating the grading and com- 
 pensation of department clerks. The members of the 
 board and its assistants shall be entitled to receive 
 from the state their actual and necessary expenses 
 while traveling on the business of the board; but such 
 expenses shall be sworn to by the person who incurred 
 the same, and be approved by the chairman of the 
 board before payment is made. 
 
 "All such salaries and expenses when audited and 
 allowed by the board of state auditors, shall be paid 
 by the state treasurer out of the general fund, upon 
 warrant of the auditor general. 
 
 3. The board may make rules not inconsistent 
 with this act for carrying out the provisions of the act. 
 Process and procedure under this act shall be as 
 summary as reasonably may be. The board or any 
 member thereof shall have the power to administer 
 oaths, subpoena witnesses and to examine such parts 
 of the books and records of the parties to a proceeding 
 as relate to questions in dispute.
 
 424 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 " 4. The board shall cause to be printed and fur- 
 nish free of charge to any employer or employe 1 such 
 blank forms as it shall deem requisite to facilitate or 
 promote the efficient administration of this act; it 
 shall provide a proper record book in which shall be 
 entered and indexed the name of any employer who 
 shall file a statement of election under this act, and 
 the date of the filing thereof and its approval by such 
 board, and a separate book in which shall be entered 
 and indexed the name of every employer who shall 
 file his notice of withdrawal of said election, and the 
 date of the filing thereof; and books in which shall be 
 recorded all orders and awards made by the board; 
 and such other books or records as it shall deem re- 
 quired by the proper and efficient administration of 
 this act; all such records to be kept in the office of the 
 board. Upon the filing of a statement of election by 
 an employer to become subject to the provisions of 
 this act, the board shall forthwith cause such notice 
 of the fact to be given by requiring said employer to 
 post such notice as hereinbefore provided; and the 
 board shall likewise cause notice to be given of the 
 filing of any withdrawal of such election; but not- 
 withstanding the failure to give, or the insufficiency 
 of, any such notice, knowledge of all filed statements 
 of election and notices of withdrawal of election, and 
 of the time of the filing of the same, shall conclusively 
 be imputed to all employe's. 
 
 "5. If the employer, or the insurance company 
 carrying such risk, or commissioner of insurance, as 
 the case may be, and the injured employe" reach an 
 agreement in regard to compensation under this act, 
 a memorandum of such agreement shall be filed with 
 the industrial accident board, and, if approved by it, 
 shall be deemed final and binding upon the parties
 
 PROCEDURE IN ADMINISTERING LAW 425 
 
 Michigan 
 
 thereto. Such agreements shall be approved by said 
 board only when the terms conform to the provisions 
 of this act. 
 
 "6. If the employer, or the insurance company 
 carrying such risk, or the commissioner of insurance, 
 as the case may be, and the employe fail to reach an 
 agreement in regard to compensation under this act, 
 either party may notify the industrial accident board, 
 who shall thereupon call for the formation of a commit- 
 tee of arbitration. The committee of arbitration shall 
 consist of three members, one of whom shall be a 
 member of the industrial accident board, and shall 
 act as chairman. The other two members shall be 
 named respectively by the two parties. 
 
 " 7. It shall be the duty of the industrial accident 
 board, upon notification that the parties have failed 
 to reach an agreement, to request both parties to 
 appoint their respective representatives on the com- 
 mittee of arbitration. The board shall designate one 
 of its members to act as chairman, and, if either 
 party does not appoint its member on this committee 
 within seven days after notification as above provided, 
 the board or any member thereof shall fill the vacancy 
 and notify the parties to that effect. 
 
 " 8. The committee of arbitration shall make such 
 inquiries and investigations as it shall deem necessary. 
 The hearings of the committee shall be held at the 
 locality where the injury occurred, and the decision 
 of the committee shall be filed with the industrial 
 accident board. Unless a claim for a review is filed 
 by either party within seven days, the decision shall 
 stand as the decision of the industrial accident board : 
 Provided, That said industrial accident board may, 
 for sufficient cause shown, grant further time in which 
 to claim such review.
 
 426 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 " 10. The arbitrators named by or for the par- 
 ties to the dispute shall each receive five dollars 
 a day for his services, but the industrial accident 
 board or any member thereof may allow additional 
 reasonable amounts in extraordinary cases. The 
 fees of such arbitrators and other costs of such ar- 
 bitration, not exceeding, however, the taxable costs 
 allowed in suits at law in the circuit courts of this 
 state, shall be fixed by the board and paid by the state 
 as the other expenses of the board are paid. The fees 
 and the payment thereof of all attorneys and physi- 
 cians for services under this act shall be subject to the 
 approval of the industrial accident board. 
 
 " 16. All questions arising under this act, if not 
 settled by agreement by the parlies interested therein, 
 shall except as otherwise herein provided, be deter- 
 mined by the industrial accident board." 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 "7. * * * l If a dispute then exists as to the 
 workman's condition or amount of weekly compen- 
 sation such dispute shall be determined by arbitration 
 under this Act, or by judicial procedure as herein- 
 after provided ; provided, also, that any and all disputes 
 arising under this Act may be first submitted to a 
 board of arbitration, and in case of failure to settle 
 it, resort may be had to courts of justice." 
 
 "8. Arbitration proceedings shall be as follows: 
 The employer and the workman may each choose 
 one arbitrator, the two arbitrators thus chosen shall 
 choose a third, and the three arbitrators shall hear 
 
 1 For first part of this section see Chapter XXIII, ante, page 391. 
 The first part of the section, however, applies to medical examina- 
 tions as to the physical condition of the claimant.
 
 
 PROCEDURE IN ADMINISTERING LAW 427 
 
 New Hampshire 
 
 the facts of the dispute within three months after 
 having been chosen, and within two weeks thereafter 
 render a decision, which, if unanimous, shall be final 
 and binding on both parties." 
 
 " 9. On failure of the board of arbitration to reach 
 an adjustment of the dispute above referred to, either 
 party may apply to a court of competent jurisdiction, 
 and have an adjudication as in any other controversy. 
 And the findings and judgment of the court shall 
 be conclusive on all parties concerned. Said courts 
 may compel the attendance of witnesses and the 
 production of evidence, as in all other cases provided 
 for by law, and the judgment of said court may con- 
 tinue and diminish or increase the weekly payments, 
 subject to the maximum provided in this Act. The 
 prevailing party in any action, brought under the 
 provisions of this Act, shall be entitled to his costs 
 of suit and reasonable attorney's fees; provided, 
 that nothing in this Act shall operate to defeat the 
 constitutional right of appeal." 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 " 9. Any question as to compensation which may 
 arise under this act shall be determined by agree- 
 ment or by an action at equity, as hereinafter pro- 
 vided. In case the employer fail to make compen- 
 sation as herein provided, the injured workman, or 
 his guardian if such be appointed, or his executor or 
 administrator, may then bring an action to recover 
 compensation under this act in any court having 
 jurisdiction of an action for recovery of damages for 
 negligence for the same injury between the same par- 
 ties. Such action shall be by petition in equity, which 
 may be made returnable at the appropriate term of
 
 428 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 the Superior Court or may be filed in the office of the 
 Clerk of the Superior Court and presented in term 
 time or vacation to any justice of said court, who on 
 reasonable notice shall hear the parties and render 
 judgment thereon. The judgment in such action 
 if in favor of the plaintiff shall be for a lump sum 
 equal to the amount of payments then due and 
 prospectively due under this act. In such action by 
 an executor or administrator the judgment may pro- 
 vide the proportions of the award or the costs to be 
 distributed to or between the several dependents. If 
 such determination is not made it shall be determined 
 by the Probate Court in which such executor or ad- 
 ministrator is appointed, in accordance with this act, 
 on petition of any party interested, on such notice as 
 such court may direct. Any employer who has de- 
 clared his intention to act under the compensation 
 features of this act shall also have the right to apply 
 by similar proceedings to the Superior Court or to 
 any justice thereof for a determination of the amount 
 of the weekly payments to be paid the injured work- 
 man, or of a lump sum to be paid the injured workman 
 in lieu of such weekly payments; and either such 
 employer or workman may apply to said Superior 
 Court or to any justice thereof in similar proceedings 
 for the determination of any other question that may 
 arise under the compensation features of this act; and 
 said court or justice, after reasonable notice and 
 hearing, may make such order as to the matter in 
 dispute and taxable costs as justice may require." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 "II, 18. In case of dispute question submitted to 
 court. In case of a dispute over, or failure to agree
 
 PROCEDURE IN ADMINISTERING LAW 429 
 
 New Jersey 
 
 upon, a claim for compensation between employer 
 and employe, or the dependents of the employe, 
 either party may submit the claim both as to questions 
 of fact, the nature and effect of the injuries, and the 
 amount of compensation therefor according to the 
 schedule herein provided, to the judge of the court 
 of common pleas of such county as would have juris- 
 diction in a civil case, or where there is more than 
 one judge of said court, then to either or any of said 
 judges of such court, which judge is hereby authorized 
 to hear and determine such disputes in a summary 
 manner, and his decision as to all questions of fact 
 shall be conclusive and binding." 
 
 "19. Payment in case of death. In case of death 
 where no executor or administrator is qualified, the 
 said judge shall, by order, direct payment to be made 
 to such person as would be appointed administrator 
 of the estate of such decedent upon like terms as to 
 bond for the proper application of compensation pay- 
 ments as are required of administrators. 
 
 "20. Procedure in dispute. Procedure in case of 
 dispute shall be as follows: 
 
 "Petition to court. Either party may present a 
 petition to said judge setting forth the names and 
 residences of the parties and the facts relating to 
 employment at the time of injury, the injury in its 
 extent and character, the amount of wages received 
 at the time of injury, the knowledge of the employer 
 or notice of the occurrence of said injury, and such 
 other facts as may be necessary and proper for the 
 information of the said judge, and shall state the 
 matter or matters in dispute and the contention of 
 the petitioner with reference thereto. This petition 
 shall be verified by the oath or affirmation of the 
 petitioner.
 
 430 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 "Notice of hearing. Answer filed. Upon the pres- 
 entation of such petition the same shall be filed with 
 the clerk of the court of common pleas, and the judge 
 shall fix a time and place for the hearing thereof, not 
 less than three weeks after the date of the filing of 
 said petition. A copy of said petition shall be served 
 as summons in a civil action and may be served within 
 four days thereafter upon the adverse party. Within 
 seven days after the service of such notice the adverse 
 party shall file an answer to said petition, which shall 
 admit or deny the substantial averments of the peti- 
 tion, 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. 
 
 "Hear witnesses. Determination. Subsequent pro- 
 ceedings. As to costs. At the time fixed for hearing or 
 any adjournment thereof the said judge shall hear 
 such witnesses as may be presented by each party, and 
 in a summary manner decide the merits of the con- 
 troversy. This determination shall be filed in writing 
 with the clerk of the common pleas court, and judg- 
 ment shall be entered thereon in the same manner as 
 in causes tried in the court of common pleas, and shall 
 contain a statement of facts as determined by said 
 judge. Subsequent proceedings thereon shall only be 
 for the recovery of moneys thereby determined to be 
 due, provided that nothing herein contained shall be 
 construed as limiting the jurisdiction of the Supreme 
 Court to review questions of law by certiorari. Costs 
 may be awarded by said judge in his discretion, 
 and when so awarded the same costs shall be al- 
 lowed, taxed and collected as are allowed, taxed 
 and collected for like services in the common pleas 
 court."
 
 PROCEDURE IN ADMINISTERING LAW 431 
 
 New Jersey 
 
 " Chapter No. 241 Laws of 1911 
 
 "AN ACT 
 
 "Creating the employers' liability commission and 
 prescribing its powers and duties, and requiring re- 
 ports to be made by the employers of labor upon the 
 operations of the employers' liability law for the in- 
 formation of said commission. 
 
 "Be it enacted by the Senate and General Assembly 
 of the State of New Jersey: 
 
 "1. The Governor is hereby authorized to appoint 
 six citizens of this State as an employers' liability 
 commission, who shall hold their offices for the term of 
 two years and until their successors are appointed 
 and qualified. They shall receive no compensation for 
 their services, but their actual traveling expenses 
 incurred upon the business of the commission shall be 
 paid by the State Treasurer, upon warrants approved 
 by the president of the said commission. The com- 
 mission shall have power to choose one of their number 
 as president and one of their number as secretary, and 
 shall have power to appoint a clerk. The expenses of 
 the commission, the salary of the secretary and of 
 the clerk shall be paid from appropriations made for 
 that purpose in any annual or supplemental appro- 
 priation bill. It shall be the duty of the commission 
 to observe in detail, so far as possible, the operations 
 throughout the State of the recent act of the Legis- 
 lature commonly known as ' The Employers' Liability 
 Act,' entitled 'An act prescribing the liability of an 
 employer, to make compensation for injuries received 
 by an employe in the course of employment, estab- 
 lishing an elective schedule of compensation and 
 regulating procedure for the determination of liability
 
 432 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 and compensation thereunder,' approved April fourth, 
 one thousand nine hundred and eleven. 
 
 "3. This act shall take effect immediately. 
 "Approved by the Governor, April 27, 1911." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 1. Creating Board of Awards. There is hereby 
 created a State Liability Board of Awards, to be 
 composed of three members, not more than two of 
 whom shall belong to the same political party, to be 
 appointed by the governor, within thirty days after 
 the passage of this act, one of which members shall 
 be appointed for the term of two years, one member 
 for four years and one member for six years, and 
 thereafter as their terms expire the governor shall 
 appoint one member for the term of six years. Vacan- 
 cies shall be filled by appointment by the governor for 
 the unexpired term. 
 
 "2. Duties. Each member of the Board shall 
 devote his entire time to the duties of his office and 
 shall not hold any position of trust or profit or engage 
 in any occupation or business interfering or incon- 
 sistent with his duty as such member, or serve on or 
 under any committee of any political party. 
 
 "3. Salary. Each member of the Board shall 
 receive an annual salary of five thousand dollars, pay- 
 able in the same manner as salaries of state officers are 
 paid. 
 
 "4. Sessions. The Board shall be in continuous 
 session and open for the transaction of business during 
 all the business hours of each and every day, excepting 
 Sundays and legal holidays. All sessions shall be open '
 
 PROCEDURE IN ADMINISTERING LAW 433 
 
 Ohio 
 
 to the public, and shall stand and be adjourned with- 
 out further notice thereof on its records. All proceed- 
 ings of the Board shall be shown on its record of 
 proceedings, which shall be a public record, and 
 shall contain a record of each case considered, and the 
 award made with respect thereto, and all voting shall 
 be had by the calling of each member's name by the 
 secretary and each vote shall be recorded as cast. 
 
 " 5. Quorum. A majority of the board shall con- 
 stitute a quorum for the transaction of business, and 
 a vacancy shall not impair the right of the remaining 
 members to exercise all the powers of the full Board so 
 long as a majority remains. Any investigations, in- 
 quiry or hearing which the Board is authorized to 
 hold, or undertake, may be held or undertaken by or 
 before any one member of the Board. All investiga- 
 tions, inquiries, hearings, and decisions of the Board, 
 and every order made by a member thereof, when 
 approved and confirmed by a majority of the members, 
 and so shown on its record of proceedings, shall be 
 deemed to be the order of the Board. 
 
 " 6. Office. The Board shall keep and maintain its 
 office in the city of Columbus, and shall provide a 
 suitable room or rooms, necessary office furniture, 
 supplies, books, periodicals and maps. All necessary 
 expenses shall be audited and paid out of the state 
 treasury. The Board may hold sessions at any place 
 within the State. 
 
 " 7. Employes. The Board may employ a secre- 
 tary, actuary, accountants, inspectors, examiners, ex- 
 perts, clerks, stenographers and other assistants, and 
 fix their compensation. Such employments and com- 
 pensation shall be first approved by the governor, and 
 shall be paid out of the state treasury. The members 
 of the Board, actuaries, accountants, inspectors, ex- 
 
 28
 
 434 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 aminers, experts, clerks, stenographers and other 
 assistants that may be employed shall be entitled to 
 receive from the state treasury their actual and neces- 
 sary expenses while traveling in the business of the 
 Board. Such expenses shall be itemized and sworn to 
 by the person who incurred the expense, and allowed 
 by the Board. 
 
 " 8. Rules. The Board shall adopt reasonable 
 and proper rules to govern its procedure, regulate 
 and provide for the kind and character of notices, and 
 the services thereof, in cases of accident and injury to 
 employes, the nature and extent of the proofs and 
 evidence, and the method of taking and furnishing the 
 same, to establish the right to benefits of compensation 
 from the state insurance fund, hereinafter provided 
 for, the forms of application of those claiming to be 
 entitled to benefits or compensation therefrom, the 
 method of making investigations, physical examina- 
 tions and inspections, and prescribe the time within 
 which adjudications and awards shall be made. 
 
 Sections 9 and 10 relate to the furnishing of informa- 
 tion by employers and the supplying of blanks for this 
 purpose by the Board of Awards. See Chapter XXIX, 
 post, page 542. 
 
 " 11. Powers. Each member of the Board, the 
 secretary and every inspector or examiner appointed 
 by the Board shall, for the purposes contemplated by 
 this act, have power to administer oaths, certify to 
 official acts, take depositions, issue subpoenas, compel 
 the attendance of witnesses and the production of 
 books, accounts, papers, records, documents and testi- 
 mony. 
 
 " 12. Disobedience of orders. In case of disobe-
 
 PROCEDURE IN ADMINISTERING LAW 435 
 
 Ohio 
 
 dience of any person to comply with the order of the 
 Board, or subpoena issued by it as one of its inspectors, 
 or examiners, or on the refusal of a witness to testify to 
 any matter regarding which he may be lawfully in- 
 terrogated, or refuse to permit an inspection as afore- 
 said, the probate judge of the county in which the 
 person resides, on application of any member of the 
 Board, or any inspector or examiner appointed by it, 
 shall compel obedience by attachment proceedings as 
 for contempt, as in the case of disobedience of the 
 requirements of subpoena issued from such court on 
 a refusal to testify therein. 
 
 " 13. Fees. Each officer who serves such subpoena 
 shall receive the same fees as a sheriff, and each wit- 
 ness who appears, in obedience to a subpoena, before 
 the Board or an inspector or examiner, shall receive 
 for his attendance the fees and mileage provided for 
 witnesses in civil cases in courts of common pleas, 
 which shall be audited and paid from the state 
 treasury in the same manner as other expenses are 
 audited and paid, upon the presentation of proper 
 vouchers approved by any two members of the Board. 
 No witness subpoenaed at the instance of a party 
 other than the board or an inspector shall be entitled 
 to compensation from the state treasury unless the 
 Board shall certify that his testimony was material 
 to the matter investigated. 
 
 " 14. Depositions. In an investigation, the Board 
 may cause depositions of witnesses residing within or 
 without the State to be taken in the manner pre- 
 scribed by the law for like depositions in civil actions 
 in the court of common pleas. 
 
 " 15. Evidence. A transcribed copy of the evi- 
 dence and proceedings, or any specific part thereof, of 
 any investigation, by a stenographer appointed by
 
 436 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 the Board, being certified by" such stenographer to be 
 a true and correct transcript of the testimony on the 
 investigation, or of a particular witness, or of a 
 specific part thereof, carefully corn-pared by him with 
 his original notes, and to be a correct statement of the 
 evidence and proceedings had on such investigation 
 so purporting to be taken and subscribed, may be 
 received in evidence by the Board with the same 
 effect as if such stenographer were present and testi- 
 fied to the facts so certified. A copy of such transcript 
 shall be furnished on demand to any party upon the 
 payment of the fee therefor, as provided for transcript 
 in courts of common pleas. 
 
 " 16, Forms and rules. The Board shall prepare 
 and furnish blank forms, and provide in its rules for 
 their distribution so that the same may be readily 
 available, of application for benefits or compensation 
 from the state insurance fund, notices to employers, 
 proofs of injury or death, of medical attendance, of 
 employment and wage earnings, and such other 
 blanks as may be deemed proper and advisable, and 
 it shall be the duty of insured employers to constantly 
 keep on hand a sufficient supply of such blanks." 
 
 "21. The State Liability Board of Awards shall 
 disburse the state insurance fund to such employes of 
 employers as have paid into said fund the premiums 
 applicable to the classes to which they belong, that 
 have been injured in the course of their employment, 
 wheresoever such injury has occurred, and which have 
 not been purposely self-inflicted, or to their dependents 
 in case death has ensued." 
 
 "36. Decisions of board. The Board shall have 
 full power and authority to hear and determine all
 
 PROCEDURE IN ADMINISTERING LAW 437 
 
 Ohio 
 
 questions within its jurisdiction, and its decision 
 thereon shall be final. 
 
 "Provided, however, in case the final action of such 
 Board denies the right of the claimant to participate 
 at all in such fund on the ground that the injury was 
 self-inflicted or on the ground that the accident did 
 not arise in the course of employment, or upon any 
 other ground going to the basis of the claimant's right, 
 then the claimant within thirty (30) days after the 
 notice of the final action of such board may, by filing, 
 his appeal in the common pleas court of the county 
 wherein the injury was inflicted, be entitled to a trial 
 in the ordinary way, and be entitled to a jury if he 
 demands it. In such a proceeding, the prosecuting 
 attorney of the county, without additional compensa- 
 tion, shall represent the State Liability Board of 
 Awards, and he shall be notified by the clerk forthwith 
 of the filing of such appeal. 
 
 "Within thirty days after filing his appeal, the 
 appellant shall file a petition in the ordinary form 
 against such Board as defendant and further pleadings 
 shall be had in said cause according to the rules of civil 
 procedure, and the court, or the jury, under the in- 
 structions of the court, if a jury is demanded, shall 
 determine the right of the claimant; and, if they 
 determine the right in his favor, shall fix his compen- 
 sation within the limits and under the rules prescribed 
 in this act; and any final judgment so obtained shall 
 be paid by the State Liability Board of Awards out 
 of the state insurance fund in the same manner as 
 such awards are paid by such board. 
 
 "The costs of such proceeding, including a reason- 
 able attorney's fee to the claimant's attorney to be 
 fixed by the trial judge, shall be taxed against the 
 unsuccessful party. Either party shall have the
 
 438 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 right to prosecute error as in the ordinary civil 
 cases." 
 
 "36-1. Procedure of board. Such Board shall 
 not be bound by the usual common-law or statutory 
 rules of evidence or by any technical or formal rules 
 of procedure, other than as herein provided ; but may 
 make the investigation in such manner as in their 
 judgment is best calculated to ascertain the sub- 
 stantial rights of the parties and to carry out justly 
 the spirit of this act." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 " ARTICLE III 
 
 "PROCEDURE 
 
 " 1. Agreement as to compensation. If the em- 
 ployer and the employe" reach an agreement in regard 
 to compensation under this act, a memorandum of 
 such agreement signed by the parties shall be filed in 
 the office of the clerk of the superior court having 
 jurisdiction of the matter as provided in section 16 
 of this Article. The clerk shall forthwith docket the 
 same in a book kept for that purpose, and shall there- 
 upon present said agreement to a justice of the su- 
 perior court, and when approved by the justice the 
 agreement shall be enforceable by said superior court 
 by any suitable process, including executions against 
 goods, chattels, and real estate, and including pro- 
 ceedings for contempt for willful failure or neglect 
 to obey the provisions of said agreement. No appeal 
 shall lie from the agreement thus approved unless 
 upon allegation that such agreement had been pro- 
 cured by fraud or coercion. Such agreement shall be
 
 PROCEDURE IN ADMINISTERING LAW 439 
 
 Rhode Island 
 
 approved by the justice only when its terms conform 
 to the provisions of this act. 
 
 "When death has resulted from the injury and the 
 dependents of the deceased employe entitled to com- 
 pensation are, or the apportionment thereof among 
 them is, in dispute, such agreement may relate only to 
 the amount of compensation. 
 
 "2. Failure to agree. If the employer and em- 
 ploy6 fail to reach an agreement in regard to com- 
 pensation under this act, either employer or employ^, 
 and when death has resulted from the injury and the 
 dependents of the deceased employ^ entitled to com- 
 pensation are, or the apportionment thereof among 
 them is, in dispute, any person in interest may file in 
 the office of the clerk of the superior court having 
 jurisdiction of the matter as provided in section 16 of 
 this Article, a petition in the nature of a petition in 
 equity setting forth the names and residences of the 
 parties, the facts relating to employment at the time 
 of the injury, the cause, extent and character of the 
 injury, the amount of wages, earnings, or salary re- 
 ceived at the time of the injury, and the knowledge of 
 the employer or notice of the occurrence of the injury, 
 and such other facts as may be necessary and proper 
 for the information of the court, and shall state the 
 matter in dispute and the claims of the petitioner with 
 reference thereto. 
 
 " 3. Copy of petition. Within four days after the 
 filing of the petition, a copy thereof, attested by the 
 petitioner or his attorney, shall be served upon the 
 respondent in the same manner as a writ of summons 
 in a civil action. 
 
 "4. Answer to petition. Within ten days after 
 the filing of the petition, the respondent shall file an 
 answer to said petition, together with a copy thereof
 
 440 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 for the use of the petitioner, which shall state the 
 claims of the respondent with reference to the matter 
 in dispute as disclosed by the petition. No pleadings 
 other than petition and answer shall be required to 
 bring the cause to a hearing for final determination. 
 The superior court may grant further time for filing 
 the answer and allow amendments of said petition and 
 answer at any stage of the proceedings. If the re- 
 spondent do not file an answer, the cause shall pro- 
 ceed without formal default or decree pro confesso. If 
 the respondent be an infant or person under disability, 
 the superior court shall appoint a guardian ad litem 
 for such infant or person under disability. Such 
 guardian ad litem may be appointed on any court day 
 after service of the copy referred to in section 3 of 
 this Article, upon motion of any party after notice 
 given as required for motions made in the superior 
 court, and opportunity to said infant or person under 
 disability to be heard in regard to the choice of such 
 guardian ad litem. The guardian ad litem so ap- 
 pointed shall file the answer required by this section. 
 
 "5. Assignment for hearing. The petition shall 
 be in order for assignment for hearing on the motion 
 day which occurs next after fifteen days from the 
 filing of the petition. Upon the days upon which 
 said petition shall be in order for hearing it shall take 
 precedence of other cases upon the calendar, except 
 cases for tenements let or held at will or by sufferance. 
 
 " 6. Hearing. The justice to whom said petition 
 shall be referred by the court shall hear such witnesses 
 as may be presented by each party, and in a summary 
 manner decide the merits of the controversy. His 
 decision shall be filed in writing with the clerk, and a 
 decree shall be entered thereon. Such decree shall be 
 enforceable by said superior court by any suitable
 
 PROCEDURE IN ADMINISTERING LAW 441 
 
 Rhode Island 
 
 process, including executions against goods, chattels, 
 and real estate, and including proceedings for con- 
 tempt for willful failure or neglect to obey the pro- 
 visions of said decree. Such decree shall contain 
 findings of fact, which, in the absence of fraud, shall 
 be conclusive. The superior court may award as 
 costs the actual expenditures, or such part thereof as 
 to the court shall seem meet, but not including coun- 
 sel fees, and shall include such costs in its decree. 
 The superior court may refuse to award costs, and 
 no costs shall be awarded against an infant or person 
 under disability or against a guardian ad litem." 
 
 "Art. Ill, 15. Procedure. The superior court 
 shall prescribe forms and make suitable orders as to 
 procedure adapted to secure a speedy, efficient and 
 inexpensive disposition of all proceedings under this 
 act; and in making such orders said court shall not be 
 bound by the provisions of the General Laws relating 
 to practice. In the absence of such orders, special 
 orders shall be made in each case. 
 
 " 16. Actions where brought. Proceedings shall 
 be brought either in the county where the accident 
 occurred or in the county where the employer or 
 employe lives or has a usual place of business. The 
 court where any proceeding is brought shall have 
 power to grant a change of venue. 
 
 " 17. Actions not to abate. No proceedings under 
 this act shall abate because of the death of the peti- 
 tioner, but may be prosecuted by his legal repre- 
 sentative or by any person entitled to compensation 
 by reason of said death, under the provisions of this 
 act." 
 
 "Art. Ill, 19. Monthly payments. If an employe" 
 receiving a weekly payment under this act shall cease 
 to reside in the state, or, if his residence at the time
 
 442 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 of the accident is in an adjoining state, the superior 
 court, upon the application of either party, may, in its 
 discretion, having regard to the welfare of the em- 
 ploye" and the convenience of the employer, order 
 such payment to be made monthly or quarterly in- 
 stead of weekly. 
 
 "20. Court settles questions. All questions aris- 
 ing under this act, if not settled by agreement of the 
 parties interested therein, shall, except as otherwise 
 herein provided, be determined by the superior court." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "21. Creation of department. The administra- 
 tion of this act is imposed upon a department, to be 
 known as the Industrial Insurance Department, to 
 consist of three commissioners to be appointed by the 
 governor. One of them shall hold office for the first 
 two years, another for the first four years, and another 
 for the first six years following the passage and ap- 
 proval of this act. Thereafter the term shall be six 
 years. Each commissioner shall hold until his suc- 
 cessor shall be appointed and shall have qualified. 
 A decision of any question arising under this act 
 concurred in by two of the commissioners shall be the 
 decision of the department. The governor may at any 
 time remove any commissioner from office in his dis- 
 cretion, but within ten days following any such re- 
 moval the governor shall file in the office of the 
 secretary of state a statement of his reasons therefor. 
 The commission shall select one of their members as 
 chairman. The main office of the commission shall 
 be at the state capitol, but branch offices may be es- 
 tablished at other places in the State. Each member
 
 PROCEDURE IN ADMINISTERING LAW 443 
 
 Washington 
 
 of the commission shall have power to issue subprenas 
 requiring the attendance of witnesses and the pro- 
 duction of books and documents. 
 
 " 22. Salary of Commissioners. The salary of 
 each of the commissioners shall be thirty-six hundred 
 dollars per annum, and he shall be allowed his actual 
 and necessary traveling and incidental expenses; and 
 any assistant to the commissioners shall be paid for 
 each full day's service rendered by him, his actual and 
 necessary traveling expenses and such compensation 
 as the commission may deem proper, not to exceed 
 six dollars per day to an auditor, or five dollars per 
 day to any other assistant. 
 
 "23. Deputies and Assistants. The commissioners 
 may appoint a sufficient number of auditors and 
 assistants to aid them in the administration of this 
 act, at an expense not to exceed $5,000.00 per month. 
 They may employ one or more physicans in each 
 county for the purpose of official medical examina- 
 tions, whose compensation shall be limited to five 
 dollars for each examination and report therein. They 
 may procure such record books as they may deem 
 necessary for the record of the financial transactions 
 and statistical data of the department, and the nec- 
 essary documents, forms and blanks. They may 
 establish and require all employers to install and 
 maintain an uniform form of pay roll. 
 
 "24. Conduct, Management and Supervision of 
 Department. The commission shall, in accordance 
 with the provisions of this act: 
 
 "1. Establish and promulgate rules governing the 
 administration of this Act. 
 
 "2. Ascertain and establish the amounts to be paid 
 into and out of the accident fund. 
 
 "3. Regulate the proof of accident and extent
 
 444 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 thereof, the proof of death and the proof of relation- 
 ship and the extent of dependency. 
 
 "4. Supervise the medical, surgical and hospital 
 treatment to the intent that same may be in all cases 
 suitable and wholesome. 
 
 "5. Issue proper receipts for moneys received, and 
 certificates for benefits accrued and accruing. 
 
 "6. Investigate the cause of all serious injuries and 
 report to the governor from time to time any viola- 
 tions or laxity in performance of protective statutes 
 or regulations coming under the observation of the 
 department. 
 
 "7. Compile and preserve statistics showing the 
 number of accidents occurring in the establishment or 
 works of each employer, the liabilities and expendi- 
 tures of the accident fund on account of, and the 
 premium collected from the same, and hospital 
 charges and expenses. 
 
 "8. Make annual reports to the governor (one of 
 them not more than sixty nor less than thirty days 
 prior to each regular session of the legislature) of the 
 workings of the department, and showing the financial 
 statiis and the outstanding obligations of the accident 
 fund, and the statistics aforesaid." 
 
 "26. Disbursement of Funds. Disbursement out 
 of the funds shall be made only upon warrants drawn 
 by the state auditor upon vouchers therefor trans- 
 mitted to him by the department and audited by 
 him. The state treasurer shall pay every warrant 
 out of the fund upon which it is drawn. If, at any 
 time, there shall not be sufficient money in the fund 
 on which any such warrant shall have been drawn 
 wherewith to pay the same, the employer on account 
 of whose workman it was that the warrant was drawn 
 shall pay the same, and he shall be credited upon hia
 
 PROCEDURE IN ADMINISTERING LAW 445 
 
 Washington 
 
 next following contribution to such fund the amount 
 so paid with interest thereon at the legal rate from 
 the date of such payment to the date such next fol- 
 lowing contribution became payable, and if the amount 
 of the credit shall exceed the amount of the con- 
 tribution, he shall have a warrant upon the same fund 
 for the excess, and if any such warrant shall not be 
 so paid, it shall remain, nevertheless, payable out 
 of the fund. The state treasurer shall to such extent 
 as shall appear to him to be advisable keep the moneys 
 of the unsegregated portion of the accident fund in- 
 vested at interest in the class of securities provided 
 by law for the investment of the permanent school 
 fund. The state treasurer shall be liable on his 
 official bond for the safe custody of the moneys and 
 securities of the accident fund, but all the provisions 
 of an act approved February 21, 1907, entitled "An 
 act to provide for state depositories and to regulate 
 the deposits of state moneys therein," shall be ap- 
 plied to said moneys and the handling thereof by the 
 state treasurer. 
 
 " 27. Test of Invalidity of Act. 1 If any employer 
 shall be adjudicated to be outside the lawful scope 
 of this Act, the Act shall not apply to him or his 
 workman, or if any workman shall be adjudicated 
 to be outside the lawful scope of this Act because of 
 remoteness of his work from the hazard of his em- 
 ployer's work, any such adjudication shall not impair 
 the validity of this Act in other respects, and in every 
 such case an accounting in accordance with the justice 
 of the case shall be had of moneys received. If the 
 provisions of section 4 of this Act for the creation 
 of the accident fund, or the provisions of this Act 
 
 1 See 28, in Chapter XXII, for effect on Statute of Limitations 
 of adjudication of invalidity of Act. Ante, page 381.
 
 446 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 making the compensation to the workman provided 
 in it exclusive of any other remedy on the part of the 
 workman shall be held invalid the entire Act shall 
 be thereby invalidated except the provisions of section 
 31, and an accounting according to the justice of 
 the case shall be had of moneys received. In other 
 respects an adjudication of invalidity of any part 
 of this Act shall not affect the validity of the Act 
 as a whole or any other part thereof." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 " 2394-13. There is hereby created a board which 
 shall be known as the industrial accident board. 
 The commissioner of labor and industrial statistics 
 shall be ex-officio a member of such board. He may 
 however, authorize the deputy commissioner to act, 
 in his place. Within thirty days after the passage 
 of this Act, the governor, by and with the advice 
 and consent of the senate, shall appoint a member 
 who shall serve two years, and another who shall 
 serve four years. Thereafter such two members shall 
 be appointed and confirmed for terms of four years 
 each. Vacancies shall be filled in the same manner 
 for the unexpired term. Each member of the board, 
 before entering upon the duties of his office, shall 
 take the oath prescribed by the constitution. A 
 majority of the board shall constitute a quorum for 
 the exercise of any of the powers or authority con- 
 ferred by this Act, and an award by a majority shall 
 be valid. In case of a vacancy, the remaining two 
 members of the board shall exercise all the powers 
 and authority of the board until such vacancy is 
 filled. Each member of the board, including the said
 
 PROCEDURE IN ADMINISTERING LAW 447 
 
 Wisconsin 
 
 commissioner, shall receive an annual salary of 
 $5,000. This salary shall, as to the commissioner 
 of labor and industrial statistics, be in full for his 
 services as such commissioner of labor and industrial 
 statistics." 
 
 "2394-14. The board shall organize by choosing 
 one of its members as chairman. Subject to the 
 provisions of this Act, it may adopt its own rules 
 of procedure and may change the same from time to 
 time in its discretion. The board, when it shall deem 
 it necessary to expedite its business, may from time to 
 time employ one or more expert examiners for such 
 length of time as may be required, such examiners 
 to be exempt from the operation of chapter 363 of 
 the laws of 1905, and amendatory acts. It may also 
 appoint a secretary, who shall be similarly exempt, 
 and such clerical help as it may deem necessary. It 
 shall fix the compensation of all assistants so appointed. 
 It shall provide itself with a seal for the authenti- 
 cation of its orders, awards, and proceedings, upon 
 which shall be inscribed the words "Industrial 
 Accident Board Wisconsin Seal." It shall keep 
 its office at the capitol, and shall be provided by the 
 superintendent of public property with a suitable 
 room or rooms, necessary office furniture, stationery 
 and other supplies. The members of the board and 
 its assistants shall be entitled to receive from the state 
 their actual and necessary expenses while traveling 
 on the business of the board; but such expenses shall 
 be sworn to by the person who incurred the same, 
 and be approved by the chairman of the board, be- 
 fore payment is made. All salaries and expenses 
 authorized by this Act shall be audited and paid out 
 of the general funds of the state, the same as other 
 general state expenses are audited and paid.
 
 448 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 " 2394-15. Any dispute or controversy concerning 
 compensation under this Act, including any in which 
 the state may be a party, shall be submitted to 
 said industrial accident board in the manner and 
 with the effect provided in this Act. Every compro- 
 mise of any claim for compensation under this Act 
 shall be subject to be reviewed by, and set aside, 
 modified, or confirmed by the board upon applica- 
 tion made within one year from the time of such com- 
 promise." 
 
 "2394-16. Upon the filing with the board by 
 any party in interest of an application in writing 
 stating the general nature of any claim as to which 
 any dispute or controversy may have arisen, it shall 
 fix a time for the hearing thereof, which shall not be 
 more than forty days after the filing of such ap- 
 plication. The board shall cause notice of such 
 hearing, embracing a general statement of such claim, 
 to be given to each party interested, by service of 
 such notice on him personally or by mailing a copy 
 thereof to him at his last known post-office address at 
 least ten days before such hearing. Such hearing 
 may be adjourned from time to time in the discretion 
 of the board, and hearings may be held at such places 
 as the board shall designate. Either party shall have 
 the right to be present at any hearing, in person or 
 by attorney, or any other agent, and to present such 
 testimony as may be pertinent to the controversy 
 before the board; but the board may, with or with- 
 out notice to either party, cause testimony to be 
 taken, or an inspection of the premises where the in- 
 jury occurred to be had, or the time books and pay 
 roll of the employer to be examined by any member 
 of the board or any examiner appointed by it, and 
 may from time to time direct any employe claiming
 
 
 PROCEDURE IN ADMINISTERING; LAW 449 
 
 Wisconsin 
 
 compensation to be examined by a regular physician; 
 the testimony so taken, and the results of any such 
 inspection or examination, to be reported to the board 
 for its consideration upon final hearing. The board, 
 or any member thereof, or any examiner appointed 
 thereby, shall have power and authority to issue 
 subpoenas, to compel the attendance of witnesses 
 or parties, and the production of books, papers, or 
 records, and to administer oaths. Obedience to such 
 subpoenas shall be enforced by the circuit court of 
 any county." 
 
 "2394-17. After final hearing by said board, it 
 shall make and file (1) its findings upon all the facts 
 involved in the controversy, and (2) its award, which 
 shall state its determination as to the rights of the 
 parties. Pending the hearing and determination 
 of any controversy before it, the board shall have 
 power to order the payment of such, or any part 
 of the compensation, which is or may fall due, as to 
 which the party from whom the same is claimed does 
 not deny liability in good faith within ten days after 
 the giving of notice of hearing provided for in the 
 preceding section; and if the same shall not be paid 
 as required by such order, the facts with respect 
 to the liability therefor, and the determination of 
 the board, as to the rights of the parties, shall be em- 
 braced in, and constitute a part of, its finding and 
 award ; and the board shall have the power to include 
 in its award, as a penalty for non-compliance with 
 any such order, not exceeding twenty-five per cent 
 of each amount which shall not have been paid as 
 directed thereby. 
 
 "2394-18. Either party may present a certified 
 copy of the award to the circuit court for any county, 
 whereupon said court shall, without notice, render a 
 
 29
 
 450 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 judgment in accordance therewith; which judgment, 
 until and unless set aside as hereinafter provided, 
 shall have the same effect as though duly rendered 
 in an action duly tried and determined by said court, 
 and shall, with like effect, be entered and docketed."
 
 CHAPTER XXV 
 
 REVIEWING AWARDS BY APPEAL 
 
 Page 
 
 1. Introduction 451 
 
 2. Points raised below only considered on appeal 451 
 
 3. Reviewing facts 452 
 
 4. Determining adequacy of lump sum paid under agreement. . 453 
 
 5. Order terminating weekly payments not appealed from is 
 
 final 453 
 
 6. Dismissal of action and making decision in arbitration pro- 
 
 ceedings 454 
 
 7. Award of costs 454 
 
 Page Page 
 
 CALIFORNIA 454 NEW HAMPSHIRE 459 
 
 ILLINOIS 456 NEW JERSEY 460 
 
 KANSAS 456 OHIO 460 
 
 MASSACHUSETTS 456 RHODE ISLAND 461 
 
 MICHIGAN 458 WASHINGTON 464 
 
 NEVADA 459 WISCONSIN 466 
 
 1. Introduction. 
 
 The question of the right to appeal depends almost 
 entirely on statutes under modern procedure. Some 
 general principles not covered by particular statutes are 
 now and then decided by the courts. The decisions 
 which follow have been selected from the British re- 
 ports as applicable to some phases of the compensation 
 laws of the American States. 
 
 2. Points raised below only considered on appeal. 
 An appeal by an emoloyer cannot be entertained on 
 
 451
 
 452 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Reviewing facts 
 
 points which were not taken in the court below. Payne 
 and Another v. Clifton (1910), 3 B. W. C. C. 439. 
 
 3. Reviewing facts. 
 
 Where the facts are either found or admitted, the 
 only question to be decided is the inference to be drawn 
 from those facts, which is a question of law; and it is 
 open to the Court of Appeal in such a case to review the 
 conclusion at which the learned County Court judge 
 arrived, and to say whether it is or is not wrong in 
 point of law, and whether or not he has misdirected 
 himself. Gane v. Norton Hill Colliery Co. (1909), 100 
 L. T. 979; 2 B. W. C. C. 42. 
 
 An appeal to the Court of Appeal in England must be 
 dismissed when it is on purely a question of fact. Ray- 
 man v. Fields, No. 2 (1910), 102 L. T. R. 154; 3 B. W. C. 
 C. 123. 
 
 A workman was injured and was paid compensa- 
 tion for twenty-one weeks. The employers then 
 stopped payment and disputed liability of any kind, 
 including even the occurrence of an accident. Arbitra- 
 tion proceedings were brought by the workman and 
 terminated in favor of the employer. Subsequently 
 the workman applied to the County Court judge to 
 have the implied agreement recorded. The judge re- 
 fused on the ground that he had already found, as a 
 fact, no personal injury had occurred arising out of or 
 in the course of the workman's employment on the 
 date alleged, and that the payments which had already 
 been made were in the nature of a compassionate 
 allowance, and that there was no agreement. On ap- 
 peal to the Court of Appeal it was held that these were 
 findings of fact, with which the appellate court could
 
 REVIEWING AWARDS BY APPEAL 453 
 
 Order terminating weekly payments not appealed from is final 
 
 not interfere. Turner v. G. Bell and Sons (1910), 4 B. 
 W. C. C. 63. 
 
 A workman with an injured hand was advised by his 
 own doctor that he could not recover the use of it, but 
 the employers' doctor advised that he ought to exercise 
 it, and that he would soon recover if he did so. He did 
 not exercise it, and the employers applied- for a review 
 of the weekly payments on the ground that the in- 
 capacity was due not to the injury but to the unreason- 
 able conduct of the man in not exercising the hand. 
 The County Court judge held that the man had not 
 behaved unreasonably and dismissed the application 
 to review. It was held on appeal that the question was 
 one of fact, and there was evidence to support the de- 
 cision. Moss & Co. v. Akers (1911), 4 B. W. C. C. 294. 
 
 4. Determining adequacy of lump sum paid under 
 
 agreement. 
 
 An agreement for the redemption of a weekly pay- 
 ment by a lump sum was sent to a registrar to record. 
 It appearing inadequate, the registrar under the 
 powers given him by Schedule II (9) (d), referred it to 
 the judge. The judge, holding that the sole question> 
 for him to decide was whether the agreement had in 
 fact been made, declined to decide the question of 
 adequacy. It was held on appeal that the case must go 
 back for the question of adequacy to be decided. 
 Owners of the Steamship "Segura" v. Blampied (1911), 
 4 B. W. C. C. 192. 
 
 5. Order terminating weekly payments not appealed 
 
 from is final. 
 An order terminating weekly payments is, unless
 
 454 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 appealed from, final, and the original agreement or 
 order is not then the subject of review. Nicholson v. 
 Piper (1906), 96 L. T. 75; 9 W. C. C. 123, aff'd, House 
 of Lords (1907), A. C. 215; 97 L. T. 119; 9 W. C. C. 
 128. 
 
 6. Dismissal of action and making decision in arbi- 
 
 tration proceedings. 
 
 Where in an action under the Employers' Liability 
 Act the judge dismissed the action and then came to 
 the conclusion that no compensation was payable under 
 the Workmen's Compensation Act, it was held that 
 an appeal could be taken from his action as a judge and 
 that he did not deal with the case as an arbitrator 
 under the Employers' Liability Act. Granick v. British 
 Columbia Sugar Co. (1910), 15 B. C. R. 452; 4 B. W. 
 C. C. 452. 
 
 7. Award of costs. 
 
 If a judge grants a party costs they must be taxed, 
 and when an order as to costs is made part of an award, 
 an appeal lies to the Court of Appeal in respect to such 
 order. Beadle and Others v. Owners of S. S. "Nicholas" 
 (1909), 101 L. T. 586; 3 B. W. C. C. 102. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 18. The findings of fact made by the board act- 
 ing within its powers, shall, in the absence of fraud, be 
 conclusive, and the award, whether judgment has been 
 rendered thereon or not, shall be subject to review 
 only in the manner and upon the grounds following: 
 within thirty days from the date of the award, any
 
 PREVIEWING AWARDS BY APPEAL 455 
 
 California 
 
 party aggrieved thereby may file with the board an 
 application in writing for a review of such award, 
 stating generally the grounds upon which such review 
 is sought; within thirty days thereafter the board 
 shall cause all documents and papers on file in the 
 matter, and a transcript of all testimony which may 
 have been taken therein, to be transmitted with their 
 findings and award to the clerk of the superior court 
 of that county or city and county wherein the accident 
 occurred; such application for a review may thereupon 
 be brought on for hearing before said court upon such 
 record by either party on ten days' notice to the other, 
 subject, however, to the provisions of law, for a change 
 of the place of trial or the calling of another judge. 
 Upon such hearing the court may confirm or set aside 
 such award, and any judgment which may theretofore 
 have been rendered thereon, but the same shall be set 
 aside only upon the following grounds: 
 
 " (1) That the board acted without or in excess of 
 its powers. 
 
 " (2) That the award was procured by fraud. 
 
 " (3) That the findings of fact by the board do not 
 support the award. 
 
 " 19. Upon the setting aside of any award the 
 court may recommit the controversy and remand the 
 record in the case to the board, for further hearing or 
 proceedings, or it may enter the proper judgment upon 
 the findings, as the nature of the case shall demand. 
 An abstract of the judgment entered by the trial court 
 upon the review of any award shall be made by the 
 clerk thereof upon the docket entry of any judgment 
 which may theretofore have been rendered upon such 
 award, and transcripts of such abstract may thereupon 
 be obtained for like entry upon the dockets of the 
 courts of other counties, or city and county.
 
 456 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 "20. Any party aggrieved by a judgment entered 
 upon the review of any award, may appeal therefrom 
 within the time and in the manner provided for an 
 appeal from the orders of the superior court; but all 
 such appeals shall be placed on the calendar of the 
 supreme court and brought to a hearing in the same 
 manner as criminal causes on such calendar." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 Appeals may be taken to the Circuit Court from 
 decisions of arbitrators. 10. See Chapter XXIV, 
 ante, page 411. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 There does not seem to be any provision in the Act 
 for an appeal from an award by arbitrators but the 
 ordinary appeals may be taken from judgments entered 
 after a trial in court. 
 
 See 29 and 32, in Chapter XXVI, post, pages 487- 
 488 for provision as to modification of agreement or 
 award. 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 After a decision by arbitrators either party may ap- 
 peal within seven days (Part III, 7) to the Industrial 
 Accident Board. 
 
 Part III, 10 and 11 provide: 
 
 " 10. If a claim for a review is filed, as provided 
 in Part III, section seven, the board shall hear the
 
 REVIEWING AWARDS BY APPEAL 457 
 
 Massachusetts 
 
 parties and may hear evidence in regard to any or all 
 matters pertinent thereto and may revise the de- 
 cision of the committee in whole or in part, or may 
 refer the matter back to the committee for further 
 findings of fact, and shall file its decision with the 
 records of the proceedings and notify the parties 
 thereof. No party shall as a matter of right be en- 
 titled to a second hearing on any question of fact. 
 
 " 11. Any party in interest may present certified 
 copies of an order or decision of the board, a decision 
 of an arbitration committee from which no claim for 
 review has been filed within the time allowed therefor, 
 or a memorandum of agreement approved by the 
 board, and all papers in connection therewith, to the 
 superior court for the county in which the injury oc- 
 curred or for the county of Suffolk, whereupon said 
 court shall render a decree in accordance therewith 
 and notify the parties. Such decree shall have the 
 same effect and all proceedings in relation thereto 
 shall thereafter be the same as though duly rendered 
 in a suit duly heard and determined by said court, 
 except that there shall be no appeal therefrom upon 
 questions of fact, or where the decree is based upon a 
 decision of an arbitration committee or a memo- 
 randum of agreement, and that there shall be no 
 appeal from a decree based upon an order or decision 
 of the board which has not been presented to the 
 court within ten days after the notice of the filing 
 thereof by the board. Upon the presentation to it of 
 a certified copy of a decision of the industrial acci- 
 dent board ending, diminishing or increasing a weekly 
 payment under the provisions of Part III, sec- 
 tion twelve, the court shall revoke or modify the 
 decree to conform to such decision." (As amended 
 by L. 1912, c. 571.)
 
 458 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "Part III, 11. If a claim for review is filed, as 
 provided in part three, section eight, the industrial 
 accident board shall promptly review the decision of 
 the committee of arbitration and such records as may 
 have been kept of its hearings, and shall also if desired 
 hear the parties, together with such additional ev- 
 idence as they may wish to submit, and file its de- 
 cision therein with the records of such proceedings. 
 Such review and hearing may be held in its office at 
 Lansing or elsewhere as the board shall deem advis- 
 able. 
 
 " 12. The findings of fact made by said industrial 
 accident board actfng within its powers, shall, in the 
 absence of fraud, be conclusive, but the supreme 
 court shall have power to review questions of law in- 
 volved in any final decision or determination of said 
 industrial accident board : Provided, That application 
 is made by the aggrieved party within thirty days 
 after such determination by certiorari, mandamus or 
 by any other method permissible under the rules and 
 practice of said court or the laws of this state, and to 
 make such further orders in respect thereto as justice 
 may require. 
 
 " 13. Either party may present a certified copy 
 of the decision of such industrial accident board ap- 
 proving agreements of settlement as provided in part 
 three, section five hereof, or of the decision of such 
 committee of arbitration when no claim for review is 
 made as provided in part three, section eight, or of 
 the decision of such industrial accident board when a 
 claim for review is filed as provided in part three,
 
 REVIEWING AWARDS BY APPEAL 459 
 
 New Hampshire 
 
 section eleven, providing for payment of compensa- 
 tion under this act, to the circuit court for the county 
 in which such accident occurred, whereupon said 
 court shall, without notice, render a judgment in ac- 
 cordance therewith against said employer and also 
 against any insurance company carrying such risk 
 under the provisions of this act; which judgment, 
 until and unless set aside shall have the same effect 
 as though duly rendered in an action duly tried and 
 determined by said court, and shall, with like effect, 
 be entered and docketed." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 Compensation is enforced in Nevada by an action 
 in court. Either party can appeal the same as in any 
 other action. 9. See Chapter XXIV, ante, page 427. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 The decision of the Commissioner of Labor as to 
 the financial ability of any employer to comply with 
 the act, and as to requiring such employer to give a 
 bond may be reviewed by any justice of the Superior 
 Court upon petition. See 3 in Chapter II, ante, 
 page 155. 
 
 Disputes arising under the Act are determined by 
 the court. See 9, in Chapter XXIV, ante, page 427. 
 Such determinations may be reviewed in the same man- 
 ner as other decisions by the courts. Otherwise there 
 is no special provision in the act relative to reviewing 
 determinations under the statute.
 
 460 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 Paragraph 18, of 2, (Chapter XXIV, ante, page 
 428) provides that in case of dispute the determina- 
 tion of the judge of the Court of Common Pleas, 
 "shall be conclusive and binding." Paragraph 20 
 of the same section (Chapter XXIV, ante, page 429) 
 provides, however, "that nothing herein contained 
 shall be construed as limiting the jurisdiction of the 
 Supreme Court to review questions of law by certi- 
 orari." It appears therefore that the only method 
 of review under the New Jersey Act is by certiorari 
 to the Supreme Court. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 36. Decisions of Board. The Board shall have 
 full power and authority to hear and determine all 
 questions within its jurisdiction, and its decision there- 
 on shall be final. 
 
 "Provided, however, in case the final action of such 
 Board denies the right of the claimant to participate 
 at all in such fund on the ground that the injury was 
 self-inflicted or on the ground that the accident did 
 not arise in the course of employment, or upon any 
 other ground going to the basis of the claimant's 
 right, then the claimant within thirty (30) days 
 after the notice of the final action of such Board may, 
 by filing his appeal in the common pleas court of the 
 county wherein the injury was inflicted, be entitled 
 to a trial in the ordinary way, and be entitled to a 
 jury if he demands it. In such a proceeding, the pros-
 
 REVIEWING AWARDS BY APPEAL 461 
 
 Rhode Island 
 
 ecuting attorney of the county, without additional 
 compensation, shall represent the State Liability 
 Board of Awards, and he shall be notified by the clerk 
 forthwith of the filing of such appeal. 
 
 "Within thirty days after filing his appeal, the 
 appellant shall file a petition in the ordinary form 
 against such board as defendant and further pleadings 
 shall be had in said cause according to the rules of 
 civil procedure, and the court, or the jury, under the 
 instructions of the court, if a jury is demanded, shall 
 determine the right of the claimant; and, if they de- 
 termine the right in his favor, shall fix his compensa- 
 tion within the limits and under the rules prescribed 
 in this act; and any final judgment so obtained shall 
 be paid by the State Liability Board of Awards out of 
 the state insurance fund in the same manner as such 
 awards are paid by such board. 
 
 "The costs of such proceeding including a reason- 
 able attorney's fee to the claimant's attorney to be 
 fixed by the trial judge, shall be taxed against the 
 unsuccessful party. Either party shall have the right 
 to prosecute error as in the ordinary civil cases." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. Ill, 7. Appeal. Any person aggrieved by 
 the final decree of the superior court under this act 
 may appeal to the supreme court upon any question 
 of law or equity decided adversely to the appellant 
 by said final decree or by any proceeding or ruling 
 prior thereto appearing of record, the appellant hav- 
 ing first had his objections noted to any adverse rul- 
 ings made during the progress of the trial at the time 
 such rulings were made, if made in open court and 
 not otherwise of record.
 
 462 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 The appellant shall take the following steps: 
 
 " (a) Within ten days after entry of said final de- 
 cree he shall file a claim of appeal and, if a transcript 
 of the testimony and rulings or any part thereof be 
 desired, a written request therefor. 
 
 " (6) Within such time as the justice of the superior 
 court who heard the petition, or, in case of his in- 
 ability to act from any cause within such time as any 
 other justice thereof shall fix, whether by original 
 fixing of the time, or by extension thereof, or by a 
 new fixing after any expiration thereof, the appellant 
 shall file reasons of appeal stating specifically all the 
 questions of law or equity decided adversely to him 
 which he desires to include in his reasons of appeal, 
 together with a transcript of as much of the testimony 
 and rulings as may be required. The supreme court 
 may allow amendments of said reasons of appeal. 
 Upon the filing of said reasons of appeal and transcript, 
 the clerk of the superior court shall present the trans- 
 script to the justice who heard the cause for allowance. 
 The justice after hearing and examination, shall 
 restore the transcript to the files of the clerk with a 
 certificate of his action thereon made within twenty 
 days after filing the transcript, unless the twentieth 
 day shall fall in vacation, in which event the certificate 
 may be filed at any time before the first Monday in 
 the following month of October. 
 
 "If the transcript be not allowed by the justice 
 who heard the cause within the time prescribed, or 
 objection to his allowance be made by any party, the 
 correctness of the transcript may be determined by 
 the supreme court by petition filed within thirty days 
 after filing the transcript, unless the thirtieth day 
 shall fall in vacation, in which event the correctness 
 of the transcript may be determined by petition filed
 
 REVIEWING AWARDS BY APPEAL 463 
 
 Rhode Island 
 
 on or before the tenth day after the first Monday in 
 the following month of October. In all other respects 
 than in time of filing the same course shall be followed 
 as provided in section 21 of Chapter 298 of the Gen- 
 eral Laws for establishing the truth of exceptions. 
 
 "8. Certifying papers. Upon the restoration of 
 the transcript to the files, or, if there be no transcript, 
 then upon the filing of the reasons of appeal, the clerk 
 of the superior court shall certify the cause and all 
 papers to the supreme court. 
 
 " 9. Appeal suspends decree. The claim of an ap- 
 peal shall suspend the operation of the decree appealed 
 from, but, in case of default in taking the procedure 
 required, such suspension shall cease, and the superior 
 court upon motion of any party shall proceed as if no 
 claim of appeal had been made, unless it be made to 
 appear to the superior court that the default no longer 
 exists. 
 
 " 10. Motion day. Any court day in the supreme 
 court shall be a motion day for the purpose of hearing 
 a motion to assign the appeal for hearing. 
 
 " 11. Decision. The supreme court after hearing 
 any appeal shall determine the same, and affirm, re- 
 verse or modify the decree appealed from, and may 
 itself take, or cause to be taken by the superior court, 
 such further proceedings as shall seem just. If a new 
 decree shall be necessary, it shall be framed by the 
 supreme court for entry by the superior court. There- 
 upon the cause shall be remanded to the superior court 
 for such further proceedings as shall be required. 
 
 " 12. Execution. No process for the execution of 
 a final decree of the superior court from which an ap- 
 peal may be taken shall issue until the expiration of 
 ten days after the entry thereof, unless all parties 
 against whom such decree is made waive an appeal
 
 464 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 by a writing filed with the clerk or by causing an entry 
 thereof to be made on the docket. 
 
 " 13. Questions of law. If, in the course of the pro- 
 ceedings in any cause, any question of law shall arise 
 which in the opinion of the superior court is of such 
 doubt and importance, and so affects the merits of the 
 controversy, that it ought to be determined by the 
 supreme court before further proceedings, the su- 
 perior court may certify such question to the supreme 
 court for that purpose, and stay all further proceed- 
 ings except such as are necessary to preserve the 
 rights of the parties." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "20. Court Review. Any employer, workman, 
 beneficiary, or person feeling aggrieved at any de- 
 cison of the department affecting his interests under 
 this act may have the same reviewed by a proceeding 
 for that purpose, in the nature of an appeal, initiated 
 in the superior court of the county of his residence 
 (except as otherwise provided in subdivision (1) of 
 section numbered 5) in so far as such decision rests 
 upon questions of fact, or of the proper application 
 of the provisions of this act, it being the intent that 
 matters resting in the discretion of the department 
 shall not be subject to review. The proceedings in 
 every such appeal shall be informal and summary, but 
 full opportunity to be heard shall be had before judg- 
 ment is pronounced. No such appeal shall be enter- 
 tained unless notice of appeal shall have been served 
 by mail or personally upon some member of the com- 
 mission within twenty days following the rendition 
 of the decision appealed from and communication
 
 REVIEWING AWARDS BY APPEAL 465 
 
 Washington 
 
 thereof to the person affected thereby. No bond 
 shall be required, except that an appeal by the em- 
 ployer from a decision of the department under section 
 9 shall be ineffectual unless, within five days following 
 the service of notice thereof, a bond, with surety 
 satisfactory to the court, shall be filed, conditioned to 
 perform the judgment of the court. Except in the 
 case last named an appeal shall not be a stay. The 
 calling of a jury shall rest in the discretion of the 
 court except that in cases arising under sections 9, 15 
 and 16 either party shall be entitled to a jury trial 
 upon demand. It shall be unlawful for any attorney 
 engaged in any such appeal to charge or receive any 
 fee therein in excess of a reasonable fee, to be fixed 
 by the court in the case, and, if the decision of the de- 
 partment shall be reversed or modified, such fee and 
 the fees of medical and other witnesses and the costs 
 shall be payable out of the administration fund, if 
 the accident fund is affected by the litigation. In 
 other respects the practice in civil cases shall apply. 
 Appeal shall lie from the judgment of the superior 
 court as in other civil cases. The attorney general 
 shall be the legal advisor of the department and shall 
 represent it in all proceedings, whenever so requested 
 by any of the commissioners. In all court proceedings 
 under or pursuant to this act the decision of the de- 
 partment shall be prima facie correct, and the burden 
 of proof shall be upon the party attacking the same." 
 " 25. Medical Witnesses. Upon the appeal of any 
 workman from any decision of the department af- 
 fecting the extent of his injuries or the progress of 
 the same, the court may appoint not to exceed three 
 physicians to examine the physical condition of the 
 appellant, who shall make to the court their report 
 thereon, and they may be interrogated before the 
 30
 
 466 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 court by or on behalf of the appellant in relation to 
 the same. The fee of each shall be fixed by the court, 
 but shall not exceed ten dollars per day each." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-19. The findings of fact made by the 
 board acting within its powers shall, in the absence 
 of fraud, be conclusive; and the award, whether judg- 
 ment has been rendered thereon or not, shall be sub- 
 ject to review only in the manner and upon the 
 grounds following: Within twenty days from the date 
 of the award, any party aggrieved thereby may com- 
 mence, in the circuit court for Dane county, an action 
 against the board for the review of such award, in 
 which action the adverse party shall also be made 
 defendant. In such action a complaint, which shall 
 state the grounds upon which a review is sought, shall 
 be served with the summons. Service upon the sec- 
 retary of the board, or any member of the board, shall 
 be deemed completed service. The board shall serve 
 its answer within twenty days after the service of the 
 complaint, and, within the like time, such adverse 
 party shall, if he so desires, serve his answer to said 
 complaint. With its answer, the board shall make 
 return to said court of all documents and papers on 
 file in the matter, and of all testimony which may 
 have been taken therein, and of its findings and 
 award. Said action may thereupon be brought on for 
 ' hearing before said court upon such record by either 
 party on ten days' notice to the other; subject, how- 
 ever, to the provisions of law for a change of the place 
 of trial or the calling in of another judge. Upon such 
 hearing, the court may confirm or set aside such award; 
 and any judgment which may theretofore have been
 
 REVIEWING AWARDS BY APPEAL 467 
 
 Wisconsin 
 
 rendered thereon; but the same shall be set aside only 
 upon the following grounds: 
 
 1. That the board acted without or in excess of its 
 powers. 
 
 2. That the award was procured by fraud. 
 
 3. That the findings of fact by the board do not 
 support the award. 
 
 " 2394-20. Upon the setting aside of any award 
 the court may recommit the controversy and remand 
 the record in the case to the board, for further hearing 
 or proceedings; or it may enter the proper judgment 
 upon the findings, as the nature of the case shall 
 demand. An abstract of the judgment entered by the 
 trial court upon the review of any award shall be 
 made by the clerk thereof upon the docket entry of 
 any judgment which may theretofore have been ren- 
 dered upon such award, and transcripts of such ab- 
 stract may thereupon be obtained for like entry upon 
 the dockets of the courts of other counties." 
 
 " 2394-21. Said board, or any party aggrieved by 
 a judgment entered upon the review of any award, 
 may appeal therefrom within the time and in the 
 manner provided for an appeal from the orders of the 
 circuit court; but all such appeals shall be placed on 
 the calendar of the supreme court and brought to a 
 hearing in the same manner as state causes on such 
 calendar."
 
 CHAPTER XXVI 
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 
 
 Page 
 
 1. Circumstances must have changed to justify review 469 
 
 2. Res adjudicata 469 
 
 3. New medical evidence on review to show changed circum- 
 
 stances v 471 
 
 4. Terms of application for review binding on applicant 471 
 
 5. Modifying award from a date earlier than the date of the 
 
 application to modify 471 
 
 6. Terminating compensation payments 471 
 
 7. Question of recovery from injury is one of fact 473 
 
 8. Increasing age as affecting disability 474 
 
 9. Refusal to submit to surgical operation 474 
 
 10. Reducing payments by reason of ability to do light work . . 475 
 
 11. Inability to obtain light work 476 
 
 12. Offering suitable employment 477 
 
 13. Reducing payments after offer and refusal of light work. . 477 
 
 14. Failure of workman to get or attempt to get light work . . . 478 
 
 15. Disability from disease following injury 479 
 
 16. Workman permanently injured but suffering increased dis- 
 
 ability from disease 479 
 
 17. Rolling-mill hand able to work with glasses when vision 
 
 impaired 480 
 
 18. Disability due to idleness and softened muscles 480 
 
 19. Disability due to brooding over injury 481 
 
 20. Inability to get employment due to slackness of work. . . . 482 
 
 21. Infant earning as much after as he did before accident. . . 482 
 
 22. Probable earnings of infant in different grade 482 
 
 23. Profits of business enterprise as affecting right to reduce 
 
 compensation 483 
 
 24. Apportioning loss between employer and employ^ 484 
 
 25. Allowance for expenses when work furnished away from 
 
 home 484 
 
 468
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 469 
 
 Res adjudicata 
 
 26. Diminishing payments; burden of proof 484 
 
 27. Keeping proceeding alive by payment of nominal sum. . . . 486 
 
 28. Recovering overpayments of compensation 486 
 
 Page Page 
 
 CALIFORNIA 487 NEW HAMPSHIRE 489 
 
 ILLINOIS 487 NEW JERSEY 490 
 
 KANSAS 487 OHIO 490 
 
 MASSACHUSETTS 488 RHODE ISLAND 490 
 
 MICHIGAN 489 WASHINGTON 491 
 
 NEVADA 489 WISCONSIN 492 
 
 1. Circumstances must have changed to justify re- 
 
 view. 
 
 Weekly payments can only be reviewed if the cir- 
 cumstances have altered since the last award was 
 made; otherwise the review would amount to a re- 
 hearing of the arbitration, which is not permissible. 
 Crossfield & Sons v. Tanian, 82 L. T. 813; 2 W. C. C. 
 141. 
 
 2. Res adjudicata. 
 
 On an application to review the employer is entitled 
 to introduce evidence as to the physical condition of 
 the employe, even though it conflicts with the former 
 finding as to such physical condition on the date of the 
 finding, as the determination of the County Court 
 judge, as to the physical condition of the workman, is 
 not res adjudicata. Mead v. Lockhart (1909), 2 B. W. 
 C. C. 398. 
 
 Where a workman received compensation for a while 
 and then the amount was reduced and he subsequently 
 applied for an increase, on the ground that although 
 his finger which was injured was in the same condition
 
 Res adjudicata 
 
 as at the date of the last review, the fact that he had 
 made several applications for work which had been 
 refused on account of his condition, showed that his 
 earning capacity was in fact reduced as a result of the 
 accident. It was held that the last review, by which 
 the compensation was reduced, was not res adjudicata, 
 as against the workman, and that an order of the 
 County Court judge, increasing the compensation, 
 should be sustained. Radcliffe v. The Pacific Steam 
 Navigation Co. (1910), 102 L. T. 206; 3 B. W. C. C. 
 185. In the last-mentioned case it was held that cer- 
 tain matters became res adjudicala on such a review; 
 for example, the fact that the workman was an em- 
 ploye"; that he was injured in the course of his employ- 
 ment; but that the same doctrine did not apply to the 
 amount of compensation, because the statute made 
 this subject to review by subsequent proceedings. 
 
 A collier lost the sight of one eye by accident and 
 compensation was paid for two and a half years un- 
 der an agreement. Another agreement reducing the 
 amount of compensation was then entered into in 
 March, 1908. In January, 1909, the employers applied 
 to further reduce the compensation. The workman 
 contended that the amount of his incapacity had been 
 settled once and for all by the agreement of March, 
 1908. It was held that the man was fit for his work as 
 a miner, and the judge reduced the compensation to 
 one penny a week. It was held on appeal that the 
 evidence before the County Court judge was sufficient 
 to sustain the decision, and that the workman's con- 
 tention that the agreement of March, 1908, was res 
 adjudicata could not be sustained. The Cawdor and 
 Garnant Collieries v. Jones (1909), 3 B. W. C. C. 59.
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 471 
 
 Terminating compensation payments 
 
 3. New medical evidence on review to show changed 
 
 circumstances. 
 
 On review of an award medical evidence on new 
 observations and tests is admissible to show a change 
 of circumstances. Sharman v. Holliday & Greenwood 
 (1903), 90 L. T. 46; 6 W. C. C. 147. 
 
 4. Terms of application for review binding on ap- 
 
 plicant. 
 
 On an application by employers to review a weekly 
 payment the court is bound by the terms of the em- 
 ployer's application and has no jurisdiction to find that 
 the workman has recovered from the accident at a time 
 previous to that suggested in the application. Upper 
 Forest and Western Steel and Tinplate Co. v. Thomas 
 (1909), 2 B. W. C. C. 414. 
 
 5. Modifying award from a date earlier than the 
 
 date of the application to modify. 
 
 On an application to review a weekly payment the 
 arbitrator may vary the weekly payments from the 
 date of the application, but not from an earlier date. 
 Donaldson Brothers v. Cowan (1909), 46 Scotch L. R. 
 920 ; 2 B. W. C. C. 390. 
 
 On an application to review compensation it is not 
 competent for the County Court judge to go outside of 
 that application and to make an order terminating 
 liability from an antecedent date. Charing Cross, 
 Euston and Hampstead Ry. Co. v. Boots (1909), 101 L. 
 T. 53; 2 B. W. C. C. 385. 
 
 6. Terminating compensation payments. 
 
 A workman was injured, and liability was admitted,
 
 472 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Terminating compensation payments 
 
 and compensation agreed upon during incapacity. 
 Subsequently notice was given by the employer of his 
 intention to terminate the weekly payments, on the 
 ground that the workman had recovered, and a joint 
 application was made for a reference to a medical ref- 
 eree, in accordance with the statute. The referee cer- 
 tified that the man was fit for work. The workman 
 then filed an application for arbitration, at the hearing 
 of which the County Court judge, on the medical ev- 
 idence, terminated the employer's liability. It was 
 held that the judge had jurisdiction to make such an 
 order, and was not bound to make a nominal award of 
 compensation, containing a declaration of liability. 
 Cranfield v. Ansell (1910), 4 B. W. C. C. 57. 
 
 By an accident a workman lost one finger and re- 
 ceived permanent injury to two other fingers, and was 
 awarded 4s. Id. a week compensation. On an applica- 
 tion to review the weekly payments, the County Court 
 judge, on the evidence, made an order terminating the 
 employers' liability. The workman requested that the 
 weekly compensation be reduced to Id. a, week, to 
 keep alive his right to apply for a further review in the 
 event of future loss, but the Court of Appeal held that 
 the question decided by the court below was one of 
 fact with which the Court of Appeal could not interfere. 
 Emmerson v. Donkin and Co. (1910), 4 B. W. C. C. 74. 
 
 Where a workman has returned to work and is re- 
 ceiving the same wages that he did before the accident 
 from his old employer and the compensation payments 
 have been reduced to a nominal amount, it was held, on 
 an application to terminate the payment entirely, that 
 the question is not whether the man's employers are 
 paying him or should pay him at the time of the appli-
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 473 
 Question of recovery from injury is one of fact 
 
 cation the same wages as before the accident, but 
 whether the man is left in such position that in the 
 open market his earning capacity may in the future be 
 less than it was before the accident as the result of the 
 accident. Birmingham Cabinet Manufacturing Co. v. 
 Dudley (1910), 102 L. T. 619; 3 B. W. C. C. 169. 
 
 7. Question of recovery from injury is one of fact. 
 
 The question of whether a workman has or has not 
 recovered is one of fact, and the arbitrators' finding on 
 this question will not be reviewed on appeal where 
 there is no evidence to support it. Cunningham v. 
 M'Naughton & Sinclair (1910), 47 Scotch L. R. 781; 3 
 B. W. C. C.577. 
 
 A workman's hand was injured on December 2, 1907; 
 his employers agreed to pay compensation and a mem- 
 orandum of this agreement was recorded in May, 1908. 
 After several operations for blood-poisoning his little 
 finger was amputated. In January, 1910, an applica- 
 tion was made by the employers to reduce the weekly 
 payments; the grounds of the application were that the 
 workman had wholly or partially recovered from the 
 injury, and was then able to work and receive wages. 
 The judge dismissed the application, holding that there 
 was some incapacity still, and the Court of Appeal held 
 that on the evidence the decision was correct. Leeds & 
 Liverpool Canal Co. v. Hesketh (1910), 102 L. T. 663; 3 
 B. W:C. C. 301. 
 
 A workman injured one finger in July, 1909, and 
 compensation was paid under a registered agreement. 
 On November 26, 1909, the workman admitted to the 
 employers' doctor that he was able to work, but on 
 January 17, 1910, when the employers applied to
 
 474 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Refusal to submit to surgical operation 
 
 terminate the agreement, the tip of the finger was still 
 slightly tender. The arbitrator terminated the com- 
 pensation, and refused to make a suspensory award. 
 It was held on appeal that the decision was on a question 
 of fact, and there was evidence to support it; and that 
 the case was not a proper one for a suspensory award. 
 Goodall and Clarke v. Kramer (1910), 3 B. W. C. C. 315. 
 
 8. Increasing age as affecting disability. 
 
 An award of compensation which has been paid some 
 time should not be reduced on the ground that by rea- 
 son of the increased age of the workman he would not 
 be earning as much as he was getting at the time of the 
 accident even if he had not been injured. Smith v. 
 Hughes (1905), 8 W. C. C. 115. 
 
 9. Refusal to submit to surgical operation. 
 
 Where a workman has submitted to one operation as 
 advised by the medical referee, which operation was 
 unsuccessful, and he was then requested by his em- 
 ployers to submit to another operation, which he re- 
 fused to do, it was held, on an application to review 
 the compensation award that as no evidence tending 
 to show that the second operation would be successful 
 was tendered, there was no power to submit the case 
 to the medical referee for a further hearing. Carroll v. 
 Gray and Sons (1910), 47 Scotch L. R. 646; 3 B. W. C. 
 C. 572. 
 
 A workman, after being for some time in receipt of 
 compensation, refused to undergo an operation. On 
 an application to review the doctors were unanimous 
 as to the advisability and as to the strong possibility 
 of the success of the suggested operation. The workman
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 475 
 
 Reducing payments by reason of ability to do light work 
 
 called two doctors whose opinions disagreed. It was 
 held that the finding of the County Court judge that 
 this workman was not unreasonable, was a fact which 
 could not be upset on appeal. Ruabon Coal Co. v. 
 Thomas (1909), 3 B. W. C. C. 32. 
 
 Where a workman had injured his ringer in such a 
 way as to make it stiff and crooked, and it was reported 
 by the medical men that by amputating the finger the 
 workman would be able to use the hand to better ad- 
 vantage, and the workman refused to undergo the 
 operation, it was held that the employer who had been 
 paying compensation could not merely stop the entire 
 compensation on the ground of unreasonable refusal of 
 the workman to undergo the operation, but his remedy 
 was by a proceeding to review. O'Neill v. Ropner & Co., 
 42 Irish L. T. 3; 2 B. W. C. C. 334. 
 
 Where a workman refused to undergo a simple and 
 minor operation, by which it clearly appears he would 
 be restored to capacity for work, and that the workman 
 was of good sound constitution and general health it 
 was held that the arbitrator was justified in discon- 
 tinuing compensation. Donnelly v. William Baird & 
 Co. (1908), 45 Scotch L. R. 394; 1 B. W. C. C. 95. 
 
 10. Reducing payments by reason of ability to do 
 
 light work. 
 
 A workman was in receipt of weekly payments under 
 an award. The employers applied for diminution of 
 the payments, on the ground that the man was fit to 
 do light work. There was no evidence that the man 
 could get light work, and there was evidence that he had 
 made numerous attempts to do so and had failed. The 
 County Court judge found that the man was able to
 
 476 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Inability to obtain light work 
 
 do light work and reduced the payments from 9s. 2d. 
 to 8s. per week. The Court of Appeal held that there 
 was evidence on which the payments could be reduced. 
 Cardiff Corporation v. Hall (1911), 104 L. T. 467; 4 B. 
 W. C. C. 159. Compare the last-mentioned decision 
 with the case of Proctor & Sons v. Robinson (1909), 3 
 
 B. W. C. C. 41, where it seems to have been held that 
 the fact that the workman might be able to do some 
 kind of light work was not sufficient ground on which 
 to reduce the compensation. 
 
 11. Inability to obtain light work. 
 
 Where an agreement has been entered into to pay 
 partial compensation, it is no ground for review, on 
 behalf of the workman, to allege that he is totally in- 
 capacitated, upon the contention that his employers 
 are unable to give him suitable light work and he is 
 unable to obtain light employment elsewhere. Boag v. 
 Lochwood Collieries (1909), 47 Scotch L. R. 47; 3 B. W. 
 
 C. C. 549. In the last-mentioned case the court said: 
 u As I read the Act of Parliament and relative schedule 
 the question to be decided in an application to assess 
 compensation or under an application for review of 
 weekly payments is the question of the man's physical 
 capacity to work. Now, in this case it had been de- 
 cided by agreement that the workman was partially 
 capable for work. Is it any reason for reviewing the 
 payment to say that the employers cannot find him 
 suitable work for his capacity, or that he has not been 
 able to find such work himself? If the appellant means 
 that his averments if proved would of themselves be a 
 sufficient ground for saying that compensation must 
 be increased to the full allowance under the statute, I
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 477 
 Reducing payments after offer and refusal of light work 
 
 should certainly not for myself yield for one moment 
 to any such demand. I take it that the whole question 
 is that of 'capacity to work,' which cannot be decided 
 merely by the fact that the workman has not got work, 
 but only by such evidence as satisfies the court whether 
 or not he is able to work.' 
 
 12. Offering suitable employment. 
 
 A miner who had injured one eye so that he had 
 practically no use thereof, was receiving compensation 
 when his employers offered him work in the mine at the 
 coal face. This he refused and it was held that this 
 could not be called " suitable employment" within the 
 meaning of 3 of Schedule 1, for the reason that there 
 was some appreciable increase of peril to the remaining 
 eye, and that the consequences of injury to the remain- 
 ing eye of a one-eyed man would be very serious, and 
 that therefore the employers were not entitled to have 
 the compensation discontinued, by reason of having 
 offered the workman employment which he had refused. 
 Eyre v. Houghton Main Colliery Co. (1910), 102 L. T. 
 R. 385 ; 3 B. W. C. C. 250. 
 
 33. Reducing payments after offer and refusal of 
 
 light work. 
 
 An injured workman in receipt of compensation was 
 examined jointly by his own and the employer's doctors, 
 who reported that he was fit for light work. His em- 
 ployer then offered him light work, but he refused, 
 thinking that the work offered involved some heavy 
 labor. The employer then applied for a review and the 
 County Court judge, finding that the man was fit for 
 light work, and that the offer made it perfectly clear
 
 478 BRADBURY'S WORKMEN'S COMPENSATION 
 
 Failure of workman to get or attempt to get light work 
 
 that the man would not have to do any heavy labor, re- 
 duced the payments to Id. a week. It was held on 
 appeal that there was evidence to support the de- 
 cision. McNamara & Co. v. Burtt (1911), 4 B. W. C. 
 C. 151. 
 
 A workman having been in receipt of full compensa- 
 tion for some months, entered into an agreement with 
 his old employers, to do light work at his former rate of 
 wages, and that in the event of total incapacity re- 
 curring his rights under the Act should revive. He 
 again became totally incapacitated, and claimed com- 
 pensation, which was paid. He was subsequently of- 
 fered light employment at reduced wages, with half 
 the difference between his former and present wages. 
 This offer he refused, claiming that according to the 
 terms of the agreement he was entitled to full wages. 
 The employers maintained that the agreement ter- 
 minated when the subsequent claim for compensation 
 was made, and that the workman was relegated to his 
 rights under the Act. The County Court judge upheld 
 the contention of the employers and this determination 
 was sustained by the Court of Appeal. Branford v. 
 North Eastern Railway Co. (1910), 4 B. W. C. C. 84. 
 
 14. Failure of workman to get or attempt to get light 
 
 work. 
 
 On an application by employers to review, it was 
 proved that the workman was fit for light work, but no 
 evidence was given that the man had been offered or 
 could get light work. It was admitted that he had not 
 attempted to get it. The County Court judge reduced 
 the payments from 15s. to 10s. per week. It was held 
 that there was no evidence on which the reduction
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 479 
 
 Permanent injury; increased disability from disease 
 
 could properly be made. Anglo-Australian Steam 
 Navigation Co. v. Richards (1911), 4 B. W. C. C. 247. 
 
 15. Disability from disease following injury. 
 
 A workman was injured and received compensation. 
 He soon returned to work at full wages and compensa- 
 tion ceased. Some time later he fell ill and attributing 
 his illness to the injury, applied for compensation. 
 The employers resisted on the ground that the workman 
 had fully recovered from the effects of the accident when 
 he returned to work. The County Court judge found 
 that the man had recovered from the injury and that 
 the illness had no connection with it and the compensa- 
 tion was therefore terminated. London & North-Western 
 Railway v. Taylor (1910), 4 B. W. C. C. 11. 
 
 16. Workman permanently injured but suffering in- 
 creased disability from disease. 
 
 A collier, in 1906, had his right hand permanently 
 injured. He received full compensation at 12s. Id. 
 per week and was then given light work at which he 
 earned more than his old wages. In 1910 he left his 
 work as his heart was affected by disease, which pre- 
 vented him from continuing this light work, and regis- 
 tered a memorandum of an agreement to pay full com- 
 pensation. His employers at once applied for a review 
 and reduction of the payments. The County Court 
 judge found that the man was unfit for work, but that 
 the heart disease was not connected with the injury to 
 the hand, and awarded 10s. per week. It was held that 
 as the workman was still suffering from an obvious 
 permanent injury, due to the accident, he was entitled 
 to compensation, the amount of which was a question
 
 480 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Disability due to idleness and softened muscles 
 
 for the judge to determine. Cory Brothers & Co. v. 
 Hughes (1911), 2 K. B. 738; 4 B. W. C. C. 291. 
 
 17. Rolling-mill hand able to work with glasses when 
 vision impaired. 
 
 A workman in a steel rolling mill had the sight of one 
 eye impaired by an accident. He received compensa- 
 tion for some time and the employers then applied to 
 review the payments. Conflicting medical evidence 
 being given as to the state of the man's vision, the 
 judge referred the matter to a medical referee, who 
 reported that the man would see better with glasses, 
 and could do his old work, but did not make it clear 
 that he could work without glasses. The judge found 
 that the man was physically able to work, but that, as a 
 man with glasses was unlikely to obtain employment 
 in a steel rolling mill, he was not commercially able to 
 earn, and dismissed the application to review. It was 
 held that there was evidence of a change of circum- 
 stances, which the judge ought to have considered, and 
 that the case must go back to him for a rehearing. 
 Guest, Keen & Nettle/olds v. Winsper (1911), 4 B. W. 
 C. C. 289 
 
 18. Disability due to idleness and softened muscles. 
 A collier was injured in 1907 and received compensa- 
 tion until 1910. His employers then stopped payment. 
 He took proceedings and the County Court judge found 
 that he was unfit for the heavy work of a collier, but 
 that his incapacity was due not to the accident but 
 to his prolonged idleness, his muscles having become 
 soft and unfit for hard work. He accordingly awarded 
 in favor of the employers. It was held on appeal that
 
 481 
 
 Disability due to brooding over injury 
 
 there was evidence on which the judge could so find. 
 David v. Windsor Steam Coal Co. (1911), 4 B. W. C. C. 
 177. 
 
 A workman had the tip of his little finger amputated, 
 after an accident. The wound healed, leaving slight 
 adhesions. After paying compensation for some time, 
 the employers applied for a review. It was admitted 
 that three days before the application to review was 
 heard, another piece of his finger was, under medical 
 advice, amputated. The employers contended that the 
 man would have been fit for work, and that the per- 
 sistence of the adhesions was due to his unreasonable 
 refusal to resume work, which would have soon broken 
 them down. The County Court judge upheld these 
 contentions and reduced the payments to Id. per week. 
 It was held that there was no evidence to support the 
 findings of the County Court judge, and his ruling was 
 reversed. Burgess & Co. v. Jewell (1911), 4 B. W. C. 
 C. 145. 
 
 19. Disability due to brooding over injury. 
 
 On an application to review and increase a nominal 
 award, the two medical referees of the court reported 
 that the workman, who had been injured by an ad- 
 mitted accident, was, as regards his physical condition, 
 able to resume his usual occupation as a moulder. As to 
 his mental condition, they reported that he had brooded 
 so much over his accident that his mind would not allow 
 him to summon up courage to persevere at his usual 
 work. It was held that the County Court judge was 
 right in finding that the man was not suffering from 
 any incapacity from work which resulted from the in- 
 jury, but that his inability to work was caused by 
 31
 
 482 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Probable earnings of infant in different grade 
 
 brooding over the effects of the accident, and that this 
 was not incapacity within the meaning of the Com- 
 pensation Act. Holt v. Yates and Thorn (1909), 3 B. 
 W. C. C. 75. 
 
 20. Inability to get employment due to slackness of 
 work. 
 
 An injured workman in receipt of part wages and 
 reduced compensation is not entitled to a restoration 
 to full half wages because of his inability to get em- 
 ployment because of the slackness of work. Dobby v. 
 Wilson, Pease & Co. (1909), 2 B. W. C. C. 370. 
 
 21. Infant earning as much after as he did before 
 accident. 
 
 An infant workman was injured and sustained a 
 rupture. After a few weeks he returned to his former 
 work wearing a truss. A year later his employers ap- 
 plied to terminate their liability and proved that he 
 was earning as much as before the accident. It was 
 held that the fact that an infant workman is earning 
 the same wages as before the accident is not necessarily 
 conclusive that the employers are entitled to have the 
 compensation terminated, but the arbitrator should 
 determine whether the earning capacity was the same 
 as it would have been had he not been injured. Bowhill 
 Coal Co. v. Malcolm (1910), 47 Scotch L. R. 449; 3 B. W. 
 C. C. 562. 
 
 22. Probable earnings of infant in different grade. 
 
 An infant skilled laborer, during a slack time, took 
 employment of an unskilled kind, paid at a lower rate. 
 He was injured while in the latter employment and re-
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 483 
 
 Profits of business enterprise 
 
 ceived compensation based on the wages he was receiv- 
 ing when injured. On an application to review he 
 claimed to be entitled to compensation, based on the 
 weekly sum he would probably have been earning at 
 his skilled work. It was held that in estimating the 
 probable earnings of this workman under Schedule I 
 (16), regard may be had to his power of earning money 
 in another employment and in another class of employ- 
 ment than that in which he had been working at the 
 time he was injured. Evans v. Vickers, Sons and 
 Maxim (1910), 102 L. T. 199, 3 B. W. C. C. 126, aff'd 
 by House of Lords, Vickers, Sons and Maxim (1910), 
 3 B. W. C. C. 403. In the decision of the House of 
 Lords it was held that the "weekly sum which the 
 workman would probably have been earning" is not 
 limited to what the workman would probably have 
 earned in the same employment under the same em- 
 ployer. 
 
 23. Profits of business enterprise as affecting right 
 to reduce compensation. 
 
 On an application to review the court can consider 
 as "wages" the profits of a bakery business in which 
 the workman has engaged. Norman & Burt v. Walder 
 (1904), 90 L. T. 531; 6 W. C. C. 124. 
 
 An injured workman, before the accident, earned an 
 average of 94 per year. After the accident he pur- 
 chased a public house for 100 and deducting interest 
 on capital and all expenses he still made a net profit of 
 98. On an application to review the employers con- 
 tended that although the workman had not recovered 
 from his injuries the incapacity to earn had ceased, as 
 he was earning more since the accident than before.
 
 484 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Diminishing payments; burden of proof 
 
 It was held on appeal, reversing the decision below, 
 that the test was not the man's profits, but the value of 
 the work done had it been offered as services in the open 
 market. Paterson v. A. G. Moore & Co. (1910), 47 
 Scotch L. R. 30; 3 B. W. C. C. 541. 
 
 24. Apportioning loss between employer and employe. 
 
 Where a man earns something but not enough when 
 added to the compensation payable to equal what he 
 was earning before the injury, an arbitrator is not 
 bound to reduce the payments so that the actual loss 
 to the workman shall be borne equally by him and his 
 employer. Ettis v. Knott (1900), 2 W. C. C. 116. 
 
 25. Allowance for expenses when work furnished 
 away from home. 
 
 Employers who were paying a workman 17s. 5d. a 
 week compensation gave him light work at a different 
 place some miles from home, and then filed ah applica- 
 tion to review the compensation. The County Court 
 judge reduced the payments, but allowed the man the 
 cost of a week-end ticket and also lodging allowance, 
 as he was compelled to live apart from his family dur- 
 ing the week. The family then moved to the place 
 where he was working and on a new application by the 
 employers the judge still further reduced the com- 
 pensation. On appeal it was held that the decision of 
 the court was on a question of fact and the Court of 
 Appeal would not interfere. The Taff Vale Railway Co. 
 v. Lane (1910), 3 B. W. C. C. 297. ' 
 
 26. Diminishing payments; burden of proof. 
 
 "Once liability is admitted and payment of an 
 amount for compensation is made, such amount should
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 485 
 
 Diminishing payments; burden of proof 
 
 be the employer's liability until he (the employer) dis- 
 charges the onus of showing a change of circumstances 
 which entitles him to have the amount diminished." 
 Maundrell v. Dunkerton Collieries Co. (1910), 4 B. W. 
 C. C. 76, 78. 
 
 On an application to diminish a weekly payment, it 
 was found that the workman could do some light work, 
 if he could obtain it; but the employer did not produce 
 any evidence that he could obtain such light work, and 
 the judge refused to reduce the weekly payments. It 
 was held on appeal that the employers had not dis- 
 charged the onus of proof which was upon them to 
 show that the man could obtain such work. Proctor 
 and Sons v. Robinson (1909), 3 B. W. C. C. 41. In the 
 last-mentioned case the court said: "I think the em- 
 ployers here struck too soon. Either they should first 
 obtain some work which the workman could do and 
 offer it to him, and give evidence of this, or else they 
 should give evidence that there is some chance of the 
 workman obtaining a particular kind of light work in 
 the district. Here the employers failed to prove the 
 case they put forward. The burden was upon them and 
 they failed to discharge it." 
 
 Where an employer who has been paying compensa- 
 tion contends that the incapacity from the injury has 
 ceased, and that the workman is suffering from a 
 cardiac affection unconnected with the injury, the onus 
 is on the employer of proving this contention on a pro- 
 ceeding to reduce or discontinue the compensation. 
 Quinn v. M'Callum (1908), 46 Scotch L. R. 141; 2 B. 
 W. C. C. 339. 
 
 The employers applied to review payments under a 
 registered agreement, putting in a certificate of a medi-
 
 486 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Recovering overpayments of compensation 
 
 cal referee, obtained in accordance with Schedule I (15), 
 as proof that the workman was fit to work. The man 
 tendered medical evidence in contradiction, but the 
 County Court judge rejected it on the ground that the 
 certificate was conclusive. It was held that the evidence 
 was rightly rejected, the certificate being conclusive. 
 Sapcote & Sons v. Hancock (1911), 4 B. W. C. C. 184. 
 
 27. Keeping proceeding alive by payment of nominal 
 sum. 
 
 On an application to review a weekly payment the 
 County Court judge has jurisdiction to make a sus- 
 pensory award of, say, Id. per week, or a declaration of 
 liability, it matters not which, for the purpose of keep- 
 ing alive the workman's claim for compensation, and 
 his right to go back to the judge in the event of new 
 circumstances arising rendering such a course appro- 
 priate. Owners of Vessel "Tynron" v. Morgan (1909), 
 100 L. T. 461; 2 B. W. C. C. 406. 
 
 28. Recovering overpayments of compensation. 
 
 On an application to review an order for compensa- 
 tion, it was held that the weekly payments should be 
 reduced as of a certain antecedent date. The employer 
 refused to make any further payments until the amount 
 of overpayments had been worked off. It was held that 
 the employer had no right to recover overpayments in 
 this way, as his remedy was by action. B. Hosegood and 
 Sons v. Wilson (1910), 4 B. W. C. C. 30. 
 
 Where an employer, by mistake, has paid more than 
 half wages, he is entitled to have the excess payments 
 set off as to future compensation. Muller v. The 
 Batavia Line (1909), 2 B. W. C. C. 495.
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 487 
 
 Kansas 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 The California Act contains no provisions for modi- 
 fying the award except as set forth in Chapter XXV, 
 ante, page 454. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 18. An agreement or award may, at any time 
 after six months and before eighteen months from the 
 date of filing, be reviewed, upon the application of 
 either party, on the ground that the incapacity of the 
 employe" has subsequently increased or diminished. 
 Such application shall be made to any court of com- 
 petent jurisdiction and unless the parties consent to 
 arbitration, the court may appoint a medical prac- 
 titioner to examine the employe" and report upon 
 his condition; and upon his report, and after hearing 
 all the evidence the court may modify such agreement 
 or award, as may be just, by ending, increasing or 
 diminishing the compensation, subject to the limita- 
 tions hereinbefore provided." 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 "29. Agreements and awards when canceled. At 
 any time within one year after an agreement or award 
 has been so filed, a judge of the district court having 
 jurisdiction may, upon the application of either party, 
 cancel such agreement or award, upon such terms as 
 may be just, if it be shown to his satisfaction that the 
 workman has returned to work and is earning approx-
 
 488 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 imately the same or higher wages as or than he did 
 before the accident, or that the agreement or award 
 has been obtained by fraud or undue influence, or 
 that the committee or arbitrator making the award 
 acted without authority or was guilty of serious mis- 
 conduct, or that the award is grossly inadequate or 
 grossly excessive, or if the employe" absents himself 
 so that a reasonable examination of his condition can- 
 not be made, or has departed beyond the boundaries 
 of the United States or Canada." 
 
 " 32. Review or modification of agreement or award. 
 An agreement or award may be modified at any time 
 by a subsequent agreement; or, at any time after one 
 year from the date of filing; it may be reviewed, upon 
 the application of either party on the ground that the 
 incapacity of the workman has subsequently increased 
 or diminished. Such application shall be made to the 
 said district court; and, unless the parties consent to 
 arbitration, the court may appoint a medical practi- 
 tioner to examine the workman and report to it; and 
 upon his report and after hearing the evidence of the 
 parties, the court may modify such agreement or 
 award, as may be just, by ending, increasing or dimin- 
 ishing the compensation, subject to the limitations 
 hereinbefore provided." 
 
 MASSACHUSETTS 
 
 (L. .1911, c. 751) 
 
 " Part III, 12. Any weekly payment under this act 
 may be reviewed by the industrial accident board at 
 the request of the association or of the employe* ; and 
 on such review it may be ended, diminished, or in- 
 creased, subject to the maximum and minimum 
 amounts above provided, if the board finds that the 
 condition of the employ 6 warrants such action."
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 489 
 
 New Hampshire 
 
 MICHIGAN 
 (L. 1912, No. 3) 
 
 "Part III, 14. Any weekly payment under this 
 act may be reviewed by the industrial accident board 
 at the request of the employer or the insurance com- 
 pany carrying such risks, or the commissioner of 
 insurance as the case may be, or the employe 1 ; and on 
 such review it may be ended, diminished or increased, 
 subject to the maximum and minimum amounts 
 above provided, if the board finds that the facts 
 warrant such action." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision in the Nevada law on this 
 subject. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 There is no provision in the New Hampshire Act 
 on this subject. 1 
 
 1 This seems to be a defect in the statute. If, under 9 (Chap- 
 ter XXIV, ante, page 427) the court makes an order requiring the 
 employer to pay a specified sum weekly and if the condition of the 
 employe" should subsequently change, there does not seem to be 
 any specific provision in the statute whereby this relief can be se- 
 cured. It may possibly be that such relief could be granted under 
 the wording of the latter part of 9 wherein it is provided that 
 "either such employer or workman may apply to said Superior 
 Court or to any justice thereof in similar proceedings for the de- 
 termination of any other question that may arise under the com- 
 pensation feature of this act."
 
 490 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 An agreement or award of compensation may be 
 modified at any time by a subsequent agreement, 
 or at any time after one year from the time when 
 the same became operative it may be reviewed upon 
 the application of either party on the ground that the 
 incapacity of the injured employe" has subsequently 
 increased or diminished. See 2, paragraph 21 which 
 is discussed in Chapter XI, ante, page 299. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 "33. Board of awards may modify acts. The 
 power and jurisdiction of the Board over each case 
 shall be continuing, and it may from time to time make 
 such modification or change with respect to former 
 findings or orders with respect thereto, as, in its opin- 
 ion, may be justified." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 571) 
 
 "Art. Ill, 14. Review of decrees. At any time 
 before the expiration of two years from the date of 
 the approval of an agreement, or the entry of a decree 
 fixing compensation, but not afterwards, and before 
 the expiration of the period for which compensation 
 has been fixed by such agreement or decree, but not 
 afterwards, any agreement, award, findings or decree 
 may be from time to time reviewed by the superior 
 court upon the application of either party, after due
 
 MODIFYING AWARDS OTHERWISE THAN BY APPEAL 491 
 
 Washington 
 
 notice to the other party, upon the ground that the 
 incapacity of the injured employe* had subsequently 
 ended, increased, or diminished. Upon such review 
 the court may increase, diminish, or discontinue the 
 compensation from the date of the application for 
 review, in accordance with the facts, or make such 
 other order as the justice of the case may require, but 
 shall order no change of the status existing prior to the 
 application for review. The finding of the court upon 
 such review shall be served on the parties and filed 
 with the clerk of the court having jurisdiction, in like 
 time and manner and subject to like disposition as in 
 the case of original decrees; provided that an agreement 
 for compensation may be modified at any time by a 
 subsequent agreement between the parties approved 
 by the superior court in the same manner as original 
 agreements in regard to compensation are required to 
 be approved by the provisions of section 1 of Arti- 
 cle III of this act." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "5. (h) If aggravation, diminution, or termina- 
 tion of disability takes place or be discovered after 
 the rate of compensation shall have been established 
 or compensation terminated in any case the depart- 
 ment may, upon the application of the beneficiary or 
 upon its own motion, readjust for future application 
 the rate of compensation in accordance with the rules 
 in this section provided for the same, or in a proper 
 case terminate the payments." 
 
 An increase or rearrangement of an award must be 
 made on application filed with the department. But
 
 492 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 "no increase or rearrangement shall be operative for 
 any period prior to the application therefor." 12 
 (c). See Chapter XXI, ante, page 374. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 Any compromise can be reviewed and set aside 
 within one year from the time of such compromise. 
 2394-15. Chapter XXIV, ante, page 448.
 
 CHAPTER XXVII 
 
 MANNER OF CREATING INSURANCE FUND, OR OTHER 
 ALTERNATIVE PLAN, IN COMMONWEALTHS WHERE 
 THIS IS REQUIRED OR PERMITTED 
 
 Page Page 
 
 CALIFORNIA 493 NEW HAMPSHIRE 514 
 
 ILLINOIS 499 NEW JERSEY 514 
 
 KANSAS 499 OHIO 514 
 
 MASSACHUSETTS 500 RHODE ISLAND 517 
 
 MICHIGAN 505 WASHINGTON 518 
 
 NEVADA 514 WISCONSIN 530 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 By Chapter 22 of the Laws of 1911, which was ap- 
 proved by the governor on December 24, 1911, it is pro- 
 vided as follows: 
 
 " 1. Individuals, partnerships or corporations may 
 exchange reciprocal or interinsurance contracts pro- 
 viding indemnity among each other from loss or from 
 other damages in accordance with the following pro- 
 visions of this act; provided, that no individual, part- 
 nership or corporation thus exchanging indemnity 
 shall assume on any single risk an amount greater 
 than ten per cent of the net financial rating of such 
 individual, partnership or corporation; such financial 
 rating to be shown by the reports of a commercial 
 agency having at least one hundred thousand mem- 
 bers. 
 
 "2. Such individuals, partnerships or corpora- 
 493
 
 494 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 tions so contracting among themselves shall have the 
 power to appoint an attorney, agent or other represent- 
 ative and shall, through their attorney, agent or 
 other representative, file with the insurance commis- 
 sioner of this State a certificate in writing, verified by 
 the oath of said attorney, agent or other representa- 
 tive, setting forth: 
 
 " (a) The name or title by which said individuals, 
 partnerships or corporations intending to make such 
 contracts shall be known. The insurance commis- 
 sioner may reject any name or title so submitted when 
 the same is an interference with or too similar to one 
 already appropriated or likely to mislead the public 
 in any respect and, in such case, a name not liable to 
 such objection must be chosen. 
 
 " (6) A verified copy of the form of policy, contract 
 or agreement under or by which such indemnity is 
 to be exchanged. 
 
 "(c) A verified copy of the form of power of at- 
 torney or other authority of any said attorney, agent 
 or other representative setting forth the character of 
 such representation and the authority of such repre- 
 sentative. 
 
 "(d) The location of the office or offices through 
 which said policies, contracts or agreements are to be 
 issued. 
 
 " (e) Such attorney in fact shall also file a stipula- 
 tion or agreement in writing that any notice provided 
 by law or by any insurance policy, proof of loss, 
 summons or other process may be served upon the 
 attorney in fact or upon the insurance commissioner 
 of the State of California, in all actions or in other 
 legal proceedings against such individuals, partner- 
 ships or corporations thus exchanging indemnity 
 under the provisions of section 1 of this Act. All
 
 MANNER OF CREATING INSURANCE FUND 495 
 
 California 
 
 notices, proofs of loss, summons or other legal process 
 so served shall give jurisdiction over the person of 
 such individuals, partnerships or corporations thus 
 exchanging indemnity. Whenever such service of 
 notice, proofs of loss, summons or other process shall 
 be made upon the insurance commissioner, he must 
 within ten days thereafter, transmit by mail, postage 
 paid, a copy of such notice, proof of loss, or summons, 
 or other process to the attorney in fact so appointed 
 by such individuals, partnerships or corporations so 
 contracting among themselves and shall be addressed 
 to such attorney in fact at the home or principal 
 office through which such policies are to be issued. 
 The sending of such copy by the insurance commis- 
 sioner shall be a necessary part of the service of the 
 notice, proof of loss, summons or other process. When 
 any notice, summons or other legal process is served 
 upon the insurance commissioner pursuant to the 
 provisions of this section, the service as to such in- 
 dividuals, partnerships, or corporations thus exchang- 
 ing indemnity shall be deemed complete at the end of 
 sixty days after the date of the mailing of such copy 
 of such notice, proof of loss, summons or other legal 
 process to the attorney in fact as herein provided for. 
 "(/) The attorney, agent or other representative 
 shall, whenever and as often as the same shall be 
 requested, file with the insurance commissioner a 
 statement verified by his oath to the effect that he 
 has examined the commercial rating of the individuals, 
 partnerships or corporations, composing the subscri- 
 bers in such reciprocal or interinsurance exchange as 
 shown by a commercial agency having at least one 
 hundred thousand subscribers and that, for such ex- 
 amination, it appears that no subscriber of such ex- 
 change has assumed on any single risk an amount of
 
 496 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 liability greater than ten per cent of the net financial 
 rating of such subscriber when such risk was assumed. 
 
 " (</) There shall also be filed with the insurance 
 commissioner by any said attorney, agent or other 
 representative, a written stipulation to the effect that 
 all insurance written by him upon risks situated 
 within this state shall be deemed to be business done 
 in this state and within the terms and subject as to 
 taxation to the provisions of section 14 of article 13 of 
 the constitution of this state. 
 
 "3. The agent, attorney or other representative 
 by or through whom are issued or negotiated any 
 policies of or contracts or agreements for any insurance 
 or indemnity of the character referred to in section 
 one of this act shall procure from the insurance com- 
 missioner a certificate of authority stating that all 
 the requirements of this act have been complied with 
 and upon such compliance and the payment of a fee of 
 fifty dollars the insurance commissioner shall issue 
 such certificate. Such certificate must be renewed 
 annually, for which a fee of ten dollars shall be paid. 
 Any such certificate so issued as above may be re- 
 voked or suspended by the insurance commissioner 
 if any such individuals, partnerships or corporations 
 exchanging indemnity under the provisions of this 
 act fail to comply with any or all of the require- 
 ments of this act. 
 
 "4. The attorney in fact of such individuals, 
 partnerships or corporations composing such recip- 
 rocal or interinsurance exchange shall file with the 
 insurance commissioner of this state, on or before the 
 first of March of each year, upon forms to be prepared 
 by the insurance commissioner, a statement which 
 must exhibit the condition and affairs of such exchange 
 on the 31st day of December then next preceding.
 
 MANNER OF CREATING INSURANCE FUND 497 
 California 
 
 " 5. The insurance commissioner, whenever he 
 deems necessary, must make an examination of the 
 condition and affairs relating to the exchange of in- 
 demnity of such individuals, partnerships or corpora- 
 tions composing such reciprocal or interinsurance ex- 
 change and must make such an examination before 
 issuing its original certificate of authority to do 
 business in this state; or where the home office of the 
 interinsurance or reciprocal exchange is located out- 
 side of the State of California, and when such interin- 
 surance or reciprocal exchange is licensed by the 
 insurance commissioner or department of the state 
 where such home office is located, the insurance com- 
 missioner shall accept as satisfactory a certificate of 
 compliance issued by the insurance commissioner or 
 department of the state where said home office is 
 located. Such examination shall verify the certificate 
 and statement filed by the attorney in fact. Such 
 exchange must open its books and papers for the in- 
 spection of the insurance commissioner and shall 
 otherwise facilitate such examination and the commis- 
 sioner may administer oaths and examine under oath 
 any person relative to the contracts of such exchange, 
 and if he finds the books to have been carelessly or 
 improperly kept or posted he must employ sworn 
 experts to rewrite, post and balance the same at the 
 expense of such individuals, partnerships or corpora- 
 tions composing such reciprocal or interinsurance 
 exchange. Such examination must be conducted in 
 the county where such individuals, partnerships or 
 corporations composing such reciprocal or interin- 
 surance exchange has its principal office and must be 
 private. Whenever the commissioner shall make such 
 examination as aforesaid the same must be at the 
 expense of the individuals, partnerships and corpora- 
 32
 
 498 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 tions composing such reciprocal or interinsurance 
 exchange; such expense to be paid in advance, and in 
 the event or refusal to pay such expenses the insurance 
 commissioner may refuse to issue any such certificate 
 of authority and must revoke any existing certificate 
 of authority authorizing such individuals, partner- 
 ships and corporations composing such reciprocal or 
 interinsurance exchange to execute such contracts of 
 indemnity. 
 
 "6. Unincorporated interindemnity companies 
 who do not issue policies of insurance, who do not 
 charge expenses of management except in liquidation 
 of losses, nor accept premiums from its members shall 
 be exempt from the provisions of this act. 
 
 " 7. All policies and insurance contracts or con- 
 tracts of indemnity upon a risk or risks situated in the 
 State of California, held by an individual, partnership 
 or corporation as a subscriber of any reciprocal or inter- 
 insurance exchange which exchange is not authorized 
 to do business in the State of California shall be null and 
 void ; provided, that any insurance agreement or agree- 
 ment for indemnity on goods between states or terri- 
 tory and states or to or from a foreign country or the 
 property of common carriers used by such common car- 
 riers in the transaction of interstate commerce or com- 
 merce with foreign countries, shall be deemed not void. 
 
 "8. For the purpose of taxation under the pro- 
 visions of section 14 of article 13 of the constitution 
 of the State of California all contracts of indemnity 
 upon risks located in this state between individuals, 
 partnerships and corporations under the provisions 
 of this act shall be deemed to be contracts of insurance 
 upon business done in this state under and subject to 
 the provisions of such section 14 article 13 of the con- 
 stitution of the State of California.
 
 MANNER OF CREATING INSURANCE FUND 499 
 Kansas 
 
 " 9. Individuals, partnerships and corporations 
 exchanging reciprocal or interinsurance and contracts 
 providing indemnity among each other shall be exempt 
 from the provisions of other insurance laws of this 
 state. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 There is no provision in the Illinois Act on this sub- 
 ject. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 " 39. Certificate required. If the superintendent 
 of insurance by and with the advice and written ap- 
 proval of the attorney general certifies that any scheme 
 of compensation, benefit or insurance for the work- 
 man of an employer in any employment to which this 
 act applies, whether or not such scheme includes other 
 employers and their workman, provides scales of 
 compensation not less favorable to the workman and 
 their dependents than the corresponding scales con- 
 tained in this act, and that, where the scheme provides 
 for contributions by the workman, the scheme confers 
 benefits at least equivalent to those contributions, in 
 addition to the benefits to which the workmen would 
 have been entitled under this act or their equivalents, 
 the employer, may, while the certificate is in force, con- 
 tract with any of his workmen that the provisions 
 of the scheme shall be substituted for the provisions 
 of this act; and thereupon the employer shall be liable 
 only in accordance with that scheme; but, save as 
 aforesaid, this act shall not apply notwithstanding any 
 contract to the contrary made after this act becomes a 
 law.
 
 500 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 " 40. Condition to certificate. No scheme shall be 
 so certified which does not contain suitable provisions 
 for the equitable distribution of any moneys or securi- 
 ties held for the purpose of the scheme, after due 
 provision has been made to discharge the liabilities 
 already accrued, if and when such certificate is revoked 
 or the scheme otherwise terminated. 
 
 " 41. Certificate to be revocable. If at any time the 
 scheme no longer fulfills the requirements of this 
 article, or is not fairly administered, or other valid 
 and substantial reasons therefor exist, the superin- 
 tendent of insurance by and with the attorney general 
 shall revoke the certificate and the scheme shall 
 thereby be terminated. 
 
 " 42. Information to be reported. Where a certi- 
 fied scheme is in effect the employer shall answer all 
 such inquiries and furnish all such accounts in regard 
 thereto as may be required by the superintendent. 
 
 " 43. The superintendent of insurance may make 
 all rules and regulations necessary to carry out the 
 purposes of the four preceding sections." 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 "PART IV 
 
 '' THE MASSACHUSETTS EMPLOYES INSURANCE ASSOCIATION 
 
 " 1. The Massachusetts Employe's Insurance As- 
 sociation is hereby created a body corporate with 
 the powers provided in this act and with all the gen- 
 eral corporate powers incident thereto. 
 
 " 2. The governor shall appoint a board of direct- 
 ors of the association, consisting of fifteen members, 
 who shall serve for a term of one year, or until their
 
 MANNER OF CREATING INSURANCE FUND 501 
 
 Massachusetts 
 
 successors are elected by ballot by the subscribers at 
 such time and for such term as the by-laws shall 
 provide. 
 
 " 3. Until the first meeting of the subscribers the 
 board of directors shall have and exercise all the 
 powers of the subscribers, and may adopt by-laws 
 not inconsistent with the provisions of this act, which 
 shall be in effect until amended or repealed by the 
 subscribers. 
 
 " 4. The board of directors shall annually choose 
 by ballot a president who shall be a member of the 
 board, a secretary, a treasurer, and such other officers 
 as the by-laws shall provide. 
 
 " 5. Seven or more of the directors shall constitute 
 a quorum for the transaction of business. Vacancies 
 in any office may be filled in such a manner as the 
 by-laws shall provide. 
 
 " 6. Any. employer in the commonwealth may 
 become a subscriber. 
 
 "7. The board of directors shall, within thirty 
 days of the subscription of twenty-five employers, 
 call the first meeting of the subscribers by a notice in 
 writing mailed to each subscriber at his place of busi- 
 ness not less than ten days before the date fixed for 
 the meeting. 
 
 " 8. In any meeting of the subscribers each sub- 
 scriber shall be entitled to one vote, and if a subscriber 
 has five hundred employes to whom the association 
 is bound to pay compensation he shall be entitled to 
 two votes, and he shall be entitled to one additional 
 vote for each additional five hundred employe's to 
 whom the association is bound to pay compensation, 
 but no subscriber shall cast, by his own right or by 
 the right of proxy, more than twenty votes. 
 
 " 9. No policy shall be issued by the association
 
 502 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 until not less than one hundred employers have sub- 
 scribed, who have not less than ten thousand em- 
 ploye's to whom the association may be bound to pay 
 compensation. 
 
 " 10. No policy shall be issued until a list of the 
 subscribers, with the number of employes of each, to- 
 gether with such other information as the insurance 
 commissioner may require, shall have been filed at the 
 insurance department, nor until the president and 
 secretary of the association shall have certified under 
 oath that every subscription in the list so filed is 
 genuine and made with an agreement by every sub- 
 scriber that he will take the policies subscribed for by 
 him within thirty days of the granting of a license to 
 the association by the insurance commissioner to 
 issue policies. 
 
 "11. If the number of subscribers falls below one 
 hundred, or the number of employe's to whom the 
 association may be bound to pay compensation falls 
 below ten thousand, no further policies shall be issued 
 until other employers have subscribed, who, together 
 with existing subscribers, amount to not less than one 
 hundred who have not less than ten thousand em- 
 ployes, said subscriptions to be subject to the provi- 
 sions contained in the preceding section. 
 
 " 12. Upon the filing of the certificate provided 
 for in two preceding sections the insurance commis- 
 sioner shall make such investigation as he may deem 
 proper and, if his findings warrant it, grant a license 
 to the association to issue policies. 
 
 " 13. The board of directors shall distribute the 
 subscribers into groups in accordance with the nature 
 of the business and the degree of the risk of injury. 
 Subscribers within each group shall annually pay in 
 cash, or notes absolutely payable, such premiums as
 
 MANNER OF CREATING INSURANCE FUND 503 
 
 Massachusetts 
 
 may be required to pay the compensation herein pro- 
 vided for the injuries which may occur in that 
 year. 
 
 " 14. The association may in its by-laws and 
 policies fix the contingent mutual liability of the sub- 
 scribers for the payment of losses and expenses not 
 provided for by its cash funds; but such contingent 
 liability of a subscriber shall not be less than an 
 amount equal to and in addition to the cash premium. 
 
 "15. If the association is not possessed of cash 
 funds above its unearned premiums sufficient for the 
 payment of incurred losses and expenses, it shall 
 make an assessment for the amount needed to pay 
 such losses and expenses upon the subscribers liable 
 to assessment therefor in proportion to their several 
 liability. Every subscriber shall pay his proportional 
 part of any assessment which may be laid by the 
 association, in accordance with law and his contract, 
 on account of injuries sustained and expenses incurred 
 while he is a subscriber. 
 
 " 16. The board of directors may, from time to 
 time, by vote fix and determine the amount to be 
 paid as a dividend upon policies expiring during 
 each year after retaining sufficient sums to pay all 
 the compensation which may be payable on account of 
 injuries sustained and expenses incurred. All pre- 
 miums, assessments, and dividends shall be fixed by 
 and for groups as heretofore provided in accordance 
 with the experience of each group, but all the funds 
 of the association and the contingent liability of all 
 the subscribers shall be available for the payment of 
 any claim against the association. 
 
 " 17. Any proposed premium, assessment, div- 
 idend or distribution of subscribers shall be filed with 
 the insurance department and shall not take effect
 
 504 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 until approved by the insurance commissioner after 
 such investigation as he may deem necessary. 
 
 " 18. The board of directors shall make and en- 
 force reasonable rules and regulations for the preven- 
 tion of injuries on the premises of subscribers, and for 
 this purpose the inspectors of the association shall 
 have free access to all such premises during regular 
 working hours. Any subscriber or employe aggrieved 
 by any such rule or regulation may petition the in- 
 dustrial accident board for a review, and it may affirm, 
 amend, or annul the rule or regulation. 
 
 " 19. If any officer of the association shall falsely 
 make oath to any certificate required to be filed with 
 the insurance commissioner, he shall be guilty of 
 perjury. 
 
 " 20. Every subscriber shall, as soon as he secures 
 a policy, give notice, in writing or print, to all persons 
 under contract of hire with him that he has provided 
 for payment to injured employes by the association. 
 
 " 21. Every subscriber shall give notice in writing 
 or print to every person with whom he is about to 
 enter into a contract of hire that he has provided for 
 payment to injured employes by the association. If 
 an employer ceases to be a subscriber he shall, on or 
 before the day on which his policy expires, give notice 
 thereof in writing or print to all persons under con- 
 tract with him. In case of the renewal of the policy 
 no notice shall be required under the provisions of this 
 act. He shall file a copy of said notice with the In- 
 dustrial Accident Board. The notices required by 
 this and the preceding section may be given in the 
 manner therein provided or in such other manner as 
 may be approved in the Industrial Accident Board." 
 (As amended by L. 1912, c. 571.) 
 
 "22. If a subscriber, who has complied with all
 
 MANNER OF CREATING INSURANCE FUND 505 
 Michigan 
 
 the rules, regulations and demands of the association, 
 is required by any judgment of a court of law to pay 
 to an employe" any damages on account of personal 
 injury sustained by such employe" during the period 
 of subscription, the association shall pay to the sub- 
 scriber the full amount of such judgment and the cost 
 assessed therewith, if the subscriber shall have given 
 the association notice in writing of the bringing of the 
 action upon which the judgment was recovered and an 
 opportunity to appear and defend the same. 
 
 " 23. The provisions of chapter five hundred and 
 seventy-six of the acts of the year nineteen hundred 
 and seven and of acts in amendment thereof shall 
 apply to the association, so far as such provisions are 
 pertinent and not in conflict with the provisions of 
 this act, except that the corporate powers shall not 
 expire because of failure to issue policies or make 
 insurance. 
 
 " 24. The board of directors appointed by the 
 governor under the provisions of Part IV, section two, 
 may incur such expenses in the performance of its 
 duties as shall be approved by the governor and 
 council. Such expenses shall be paid from the treasury 
 of the commonwealth and shall not exceed in amount 
 the sum of fifteen thousand dollars. 
 
 MICHIGAN 
 
 (L. 1912, c. 000) 
 
 "PART IV 
 
 "METHOD OF PAYMENT 
 
 " 1. Every employer filing his election to become 
 subject to the provisions of this act, as hereinbefore 
 set forth, shall have the right to specify at the time of
 
 506 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 doing so, subject to the approval of said industrial 
 accident board, which of the following methods for 
 the payment of such compensation he desires to 
 adopt, to-wit: 
 
 "First. Upon furnishing satisfactory proof to said 
 board of his solvency and financial ability to pay the 
 compensation and benefits hereinbefore provided for, 
 to make such payments directly to his employes, as 
 they may become entitled to receive the same under 
 the terms and conditions of this act; or 
 
 "Second. To insure against such liability in any 
 employers' liability company authorized to take such 
 risks in the state of Michigan; or 
 
 "Third. To insure against such liability in any 
 employers' insurance association organized under the 
 laws of the state of Michigan; or 
 
 "Fourth. To request the commissioner of insurance 
 of the state of Michigan to assume the administration 
 of the disbursement of such compensation exclusive 
 of that provided for in part two, section four herein, 
 and the collection of the premiums and assessments 
 necessary to pay the same, as provided in part five 
 hereof. Said board, however, shall have the right, 
 from time to time to review and alter its decision in 
 approving the election of such employer to adopt any 
 one of the foregoing methods of payment, if in its 
 judgment such action is necessary or desirable to se- 
 cure and safeguard such payments to employes. 
 
 " 2. Nothing herein shall affect any existing con- 
 tract for employers' liability insurance or affect the 
 organization of any mutual or other insurance com- 
 pany, or any arrangement now existing between em- 
 ployers and employe's, providing for the payment to 
 such employes, their families, dependents or represent- 
 atives, sick, accident or death benefits, in addition to
 
 MANNER OF CREATING INSURANCE FUND 507 
 Michigan 
 
 the compensation provided for by this act. But 
 liability for compensation under this act shall not be 
 reduced or affected by any insurance, contribution or 
 other benefit whatsoever, due to or received by the 
 person entitled to such compensation, and the person 
 so entitled shall, irrespective of any insurance or other 
 contract, have the right to recover the same directly 
 from the employer; and in addition thereto, the right 
 to enforce in his own name in the manner provided in 
 this act the liability of any insurance company or of 
 any employers' association organized under the laws 
 of the state of Michigan, or the commissioner of 
 insurance, who may, in whole or in part, have insured 
 the liability for such compensation: Provided, how- 
 ever, That payment in whole or in part of such com- 
 pensation by either the employer, or the insurance 
 company carrying such risk, or the commissioner of 
 insurance, as the case may be, shall, to the extent 
 thereof be a bar to recovery against the other, of the 
 amount so paid. 
 
 "3. 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 provisions thereof incon- 
 sistent with this act shall be void. No company shall 
 enter into any such contract for insurance, unless such 
 company shall have been approved by the commis- 
 sioner of insurance as provided by law. 
 
 "4. Any employer against whom liability may 
 exist for compensation under this act may, with the 
 approval of the industrial accident board, be relieved 
 therefrom by : 
 
 "1. Depositing the present value of the total un- 
 paid compensation for which such liability exists, 
 assuming interest at three per centum per annum,
 
 508 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 with such trust company of this state as shall be 
 designated by the employe 1 , or by his dependents, in 
 case of his death, and such liability exists in their 
 favor, or in default of such designation by him, or 
 them, after ten days' notice in writing from the em- 
 ployer, with such trust company of this state as shall 
 be designated by the industrial accident board; or 
 
 "2. By the purchase of an annuity, within the 
 limitation provided by law, in any insurance com- 
 pany granting annuities and licensed in this state, 
 which may be designated by the employe, or his de- 
 pendents, or the industrial accident board, as pro- 
 vided in subsection one of this section." 
 
 "PART V 
 
 "ADMINISTRATION BY COMMISSIONER OF INSURANCE 
 
 " 1. Whenever five or more employers, who have 
 become subject to the provisions of this act, and who 
 have on their pay rolls an aggregate number of not 
 less than three thousand employes, shall in writing 
 request the commissioner of insurance so to do, he 
 shall assume charge of levying and collection from 
 them such premium and dividends as may from time 
 to time be necessary to pay the sums which shall 
 become due their employes, or dependents of their 
 employe's, as compensation under the provisions of 
 this act, and also the expense of conducting the ad- 
 ministration of such funds; and shall disburse the 
 same to the persons entitled to receive such compen- 
 sation under the provisions of this act: Provided, 
 however, That neither the commissioner of insurance 
 nor the state of Michigan shall become or be liable or 
 responsible for the payment of claims for compensa- 
 tion under the provisions of this act beyond the ex-
 
 MANNER OF CREATING INSURANCE FUND 509 
 Michigan 
 
 tent of the funds so collected and received by him as 
 hereinafter provided. 
 
 "2. The commissioner of insurance shall imme- 
 diately upon assuming the administration of the collec- 
 tion and disbursement of the moneys referred to in 
 the preceding section, cause to be created in the state 
 treasury a fund to be known as "accident fund." 
 Each such employer shall contribute to this fund to 
 the extent of such premiums or assessments as the 
 commissioner shall deem necessary to pay the com- 
 pensation accruing under this act to employe's of such 
 employers or to their dependents, which premiums 
 and assessments shall be levied in the manner and 
 proportion hereinafter set forth. The commissioner 
 of insurance shall give a good and sufficient bond in 
 the sum of twenty-five thousand dollars, executed by 
 some surety company authorized to do business in 
 the state of Michigan, covering the collection and 
 disbursement of all moneys that may come into his 
 hands under the provisions of this act. The premium 
 on said bond shall be paid out of the general funds of 
 the state on an order of the auditor general. Said 
 bond must be approved by the board of state au- 
 ditors. 
 
 " 3. It is the intention that the amounts raised for 
 such fund shall ultimately become neither more nor 
 less than self-supporting, and the premiums or assess- 
 ments levied for such purpose shall be subject to 
 readjustment from time to time by the commissioner 
 of insurance as may become necessary. 
 
 "4. The commissioner of insurance may classify 
 the establishments or works of such employers in 
 groups in accordance with the nature of the business in 
 which they are engaged and the probable risk of injury 
 to their employes under existing conditions. He shall
 
 510 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 determine the amount of the premiums or assessments 
 which such employers shall pay to said accident fund, 
 and may prescribe when and in what manner such 
 premiums and assessments shall be paid, and may 
 change the amount thereof both in respect to any or 
 all of such employers from time to time, as circum- 
 stances may require, and the condition of their 
 respective plants, establishments or places of work in 
 respect to the safety of their employe's may justify, 
 but all such premiums or assessments shall be levied 
 on a basis that shall be fair, equitable and just as 
 among such employers. At the beginning of each 
 fiscal year it shall be the duty of the commissioner of 
 insurance to call for the required payment of pre- 
 miums in such amounts as shall, together with any 
 balance in the accident fund, in his judgment, and 
 subject to the approval of said industrial accident 
 board, be sufficient to enable him to pay all sums 
 which may become due and payable to the employes 
 of any such employer who has become subject to the 
 provisions of part five of this act, and also the ex- 
 penses of administering such funds during the follow- 
 ing year. 
 
 "5. If any employer shall make default in the 
 payment of any contribution, premium or assessment 
 required as aforesaid by the commissioner of insur- 
 ance, the sum due shall be collected by an action at 
 law in the name of the state as plaintiff, and such 
 right of action shall be in addition to any other right 
 of action or remedy. In case any injury happens to 
 any of the workmen of such employer during the 
 period of any default in the payment of any such 
 premium, assessment or contribution, the defaulting 
 employer shall not, if such default be after demand 
 for payment, be entitled to the benefits of this act,
 
 MANNER OF CREATING INSURANCE FUND 511 
 Michigan 
 
 but shall be liable to suit by the injured workman, or 
 by his dependents in case death results from such 
 accident, as if he had not elected to become subject to 
 this act. In case, however, the amount actually 
 collected in by such injured workman or his depend- 
 ents shall equal or exceed the compensation to which 
 the plaintiff therein would be entitled under this act, 
 the plaintiff shall not be paid anything out of said 
 accident fund. If the said amount shall be less than 
 such compensation under this act, the accident fund 
 shall contribute the amount of the deficiency. The 
 person so entitled under the provisions of this section 
 shall have the choice, to be exercised before suit, of 
 proceeding by suit or taking under this act. If such 
 person shall take under this act, the cause of action 
 against the employer shall be assigned to the state 
 for the benefit of the accident fund. 
 
 "6. Any employer subject to the provisions of 
 part five of this act, who has complied with all the 
 rules, regulations and demands of the industrial 
 accident board and the commissioner of insurance, 
 may withdraw therefrom at the expiration of the 
 period of one year for which he has elected to become 
 subject to the provisions of this act: Provided, how- 
 ever, That he shall give written notice of such with- 
 drawal to said commissioner of insurance at least 
 thirty days before the expiration of such period: And 
 Provided further, That if at the time of such with- 
 drawal liability may exist against employer for com- 
 pensation to employe's who have been theretofore 
 killed or injured, as hereinbefore provided, such 
 employer shall either relieve himself and the com- 
 missioner of insurance from such liability in the man- 
 ner provided in part four, section four of this act, 
 or shall otherwise protect and indemnify said com-
 
 512 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 missioner of insurance against such liability in such 
 reasonable manner as he may require. 
 
 " 7. In case any controvert^ shall arise between 
 the commissioner of insurance and any employer sub- 
 ject to the provisions of part five of this act, relative 
 to any rule or regulation adoyted by said commissioner 
 of insurance, or any decision made by him in respect 
 to the collection, administration and disbursement of 
 such funds, or in case any controversy shall arise be- 
 tween any employe" claiming compensation under the 
 provisions of this act and said commissioner of in- 
 surance, all such controversies of every kind and 
 nature shall be subject to review in like manner and 
 with the same force and effect in all respects as is 
 heretofore provided in respect to differences arising 
 through the administration of such funds by the 
 employer, or by a liability insurance company or by 
 an employers' mutual insurance association. 
 
 " 8. The books, records and pay rolls of each em- 
 ployer subject to the provisions of part five of this act 
 shall always be open to inspection by the commissioner 
 of insurance, or his duly authorized agent or represent- 
 ative, for the purpose of ascertaining the correctness 
 of the amount of the pay roll reported, the number of 
 men employed, and such other information as said 
 commissioner may require in the administration of 
 said funds. Refusal on the part of any such employer 
 to submit said books, records and pay rolls for such 
 inspection, shall subject the offending employer to a 
 penalty of fifty dollars for each offense, to be collected 
 by civil action in the name of the state and paid unto 
 the accident fund, and the individual who shall per- 
 sonally give such refusal shall be guilty of a mis- 
 demeanor. 
 
 "9. The commissioner of insurance shall issue
 
 MANNER OF CREATING INSURANCE FUND 513 
 
 Michigan 
 
 proper receipts for all moneys so collected and re- 
 ceived from employers, as aforesaid, shall take receipts 
 for all sums paid to employes for compensation under 
 the provisions of this act, and shall keep full and com- 
 plete records of all business transacted by him in the 
 administration of such funds. He may employ such 
 deputies and assistants and clerical help as may be 
 necessary, and as the board of state auditors may 
 authorize, for the proper administration of said funds 
 and the performance of the duties imposed upon him 
 by the provisions of this act, at such compensation 
 as may be fixed by said board of state auditors, and 
 may also remove them. The commissioner of in- 
 surance and such deputies and assistants shall be 
 entitled to receive from the state their actual and 
 necessary expenses while traveling on the business of 
 the board, but all such salaries and expenses so au- 
 thorized by the provisions of this act shall be charged 
 to and paid out of said accident fund. He shall include 
 in his annual report a full and correct statement of the 
 administration of such fund, showing its financial 
 status and outstanding obligations, the claims and 
 the amount paid on each claim, claims not paid, 
 claims contested and why, and general statistics in 
 respect to all business transacted by him under the 
 provisions of this act. 
 
 " 10. Disbursements from said accident fund shall 
 be made only upon warrants approved by the board 
 of state auditors upon vouchers therefor transmitted 
 to it by the commissioner of insurance. If at any time 
 there shall not be sufficient money in said fund where- 
 with to pay the same, the employer on account of 
 whose workmen it was that such warrant was drawn 
 shall pay the same, and he shall be credited upon his 
 next following contribution to such fund the amount 
 33
 
 514 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 so paid, with interest thereon at the legal rate, from 
 the date of such payment to the date such next follow- 
 ing contribution becomes payable, and if the amount 
 of the credit shall exceed the amount of the contribu- 
 tion, he shall be repaid such excess. 
 
 "11. If this act shall be thereafter repealed, all 
 moneys which are in the accident fund at the time of 
 such repeal shall be subject to disposition under the 
 direction of the circuit court for the county of Ingham, 
 with due regard, however, to the obligation incurred 
 and existing to pay compensation under the pro- 
 visions of this act." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision in the Nevada law on this sub- 
 ject. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 See 3 in Chapter II, ante, page 155, which requires 
 an employer to demonstrate his financial ability to 
 comply with the provisions of the statute or give a 
 bond. 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 New Jersey has not provided for any form of State 
 insurance or mutual associations. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 17. Classification of employments. The State 
 Liability Board of Awards shall classify employments
 
 MANNER OF CREATING INSURANCE FUND 515 
 Ohio 
 
 with respect to their degree of hazard, and determine 
 the risks of the different classes and fix the rates of 
 premium of the risks of the same, based upon the 
 total pay roll and number of employes in each of said 
 classes of employment, sufficiently large to provide an 
 adequate fund for the compensation provided for in 
 this act, and to create a surplus sufficiently large to 
 guarantee a state insurance fund from year to year. 
 
 " 18. State insurance fund. The State Liability 
 Board of Awards shall establish a state insurance fund 
 from premiums paid thereto by employers of labor 
 and employes as herein provided, according to the 
 rates of risk in the classes established by it, as herein 
 provided, for the benefits of employes of employers 
 that have paid the premium applicable to the classes 
 to which they belong and for the benefit of the de- 
 pendents of such employes, and shall adopt rules and 
 regulations with respect to the collection, maintenance 
 and disbursement of said fund. 
 
 " 19. Custodian of fund. The treasurer of state 
 shall be the custodian of the state insurance fund, and 
 all disbursement therefrom shall be paid by him, but 
 upon vouchers signed by any two members of the 
 State Liability Board of Awards. 
 
 "20. Bond. The treasurer of state shall give a 
 separate and additional bond, in such amount as may 
 be fixed by the governor, and with sureties to his 
 approval, conditioned for the faithful performance of 
 his duties as custodian of the state insurance fund 
 herein provided for. 
 
 "20-1. Duties of employers who pay fund. Any 
 employer who employs five or more workmen or 
 operatives regularly in the same business, or in or 
 about the same establishment who shall pay into the 
 state insurance fund the premiums provided by this
 
 516 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 act, shall not be liable to respond in damages at com- 
 mon law or by statute, save as hereinafter provided, 
 for injuries or death of any such employe, wherever 
 occurring, during the period covered by such pre- 
 miums, provided the injured employe 1 has remained in 
 his service with notice that his employer has paid into 
 the state insurance fund the premiums provided by 
 this act; the continuation in the service of such em- 
 ployer with such notice, shall be deemed a waiver by 
 the employe" of his right of action as aforesaid. 
 
 Each employer paying the premiums provided by 
 this act into the state insurance fund shall post in 
 conspicuous places about his place or places of busi- 
 ness typewritten or printed notices stating the fact 
 that he has made such payment; and the same, when 
 so posted, shall constitute sufficient notice to his 
 employes of the fact that he has made such payment; 
 and of any subsequent payments he may make after 
 such notices have been posted. 
 
 " 20-2. Premiums to be paid. For the purpose of 
 creating such state insurance fund, each employer 
 who employs five or more workmen or operatives 
 regularly in the same business, or in or about the same 
 establishment, and his employe's in this state, having 
 elected to accept the provisions of this act, shall pay, 
 on or before January 1, 1912, and semi-annually 
 thereafter, the premiums of liability risk in the classes 
 of employment as may be determined and published 
 by the State Liability Board of Awards. The said 
 employers for themselves and their employe's shall 
 make such payments to the state treasurer of Ohio, 
 who will receive and place the same to the credit of 
 such state insurance fund. The premiums provided 
 for in this act shall be paid by the employer and em- 
 ploye's in the following proportions, to wit: Ninety per
 
 MANNER OF CREATING INSURANCE FUND 517 
 Rhode Island 
 
 cent of the premium shall be paid by the employer 
 and ten per cent by the employe's. Each employer 
 is authorized to deduct from the pay roll of his em- 
 ploye's ten per cent of the said premiums for any 
 premium period in proportion to the pay roll of such 
 employe's; no deduction shall be made except for that 
 portion of the premium period antedating such pay 
 roll. Each employer shall give a receipt to each em- 
 ploye" showing the amount which has been deducted 
 and paid into the state insurance fund. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "ARTICLE IV 
 
 "ALTERNATIVE SCHEMES PERMITTED 
 
 " 1. Employer and employe may agree. Any em- 
 ployer may enter into an agreement with his em- 
 ployes in any employment to which this act applies to 
 provide a scheme of compensation, benefit, or insur- 
 ance, in lieu of the compensation provided for in this 
 act, subject to the approval of the superior court. 
 Such approval shall be granted only on condition that 
 the scheme proposed provides as great benefits as 
 those provided by this act; and, if the scheme pro- 
 vides for contributions by employe's, it shall confer 
 additional benefits at least equivalent to these con- 
 tributions. If such a scheme meets with the approval 
 of said court, the clerk shall issue a certificate enabling 
 the employer to contract with any or all of his em- 
 ployes hi employments to which this act applies to 
 substitute such scheme for the provisions of this act 
 for a period of not more than five years. 
 
 "2. Agreement must contain. No scheme which
 
 518 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 provides for contributing by employes shall be so 
 certified which does not contain suitable provisions 
 for the equitable distribution of any money or se- 
 curities held for the purpose of the scheme, after due 
 provision has been made to discharge the liabilities 
 already incurred, if and when such certificate is re- 
 voked or the scheme otherwise terminated. 
 
 " 3. Agreement revoked. If at any time the scheme 
 no longer fulfills the requirements of this Article, or is 
 not fairly administered, or any other valid and sub- 
 stantial reason therefor exists, the superior court, on 
 reasonable notice to the interested parties, shall re- 
 voke the certificate and the scheme shall thereby be 
 terminated." 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 4. Schedule of contribution. Insomuch as indus- 
 try should bear the greater portion of the burden 
 of the costs of its accidents, each employer shall, 
 prior to January 15th of each year, pay into the state 
 treasury, in accordance with the following schedule, 
 a sum equal to a percentage of his total pay roll for 
 that year, to-wit: (the same being deemed the most 
 accurate method of equitable distribution of burden 
 in proportion to relative hazard) : 
 
 "CONSTRUCTION WORK 
 
 "Tunnels; bridges; trestles; sub-aqueous works; 
 ditches and canals (other than irrigation with- 
 out blasting); dock excavation; fire escapes; 
 sewers; house moving; house wrecking 065 
 
 "Iron, or steel frame structures or parts of 
 structures 080 
 
 "Electric light or power plants or systems; tele-
 
 MANNER OF CREATING INSURANCE FUND 519 
 Washington 
 
 graph or telephone systems; pile driving; 
 steam railroads 050 
 
 "Steeples, towers or grain elevators, not metal 
 framed; dry-docks without excavation; jet- 
 ties; breakwaters; chimneys; marine railways; 
 water-works or systems; electric railways 
 with rock work or blasting; blasting; erecting 
 fireproof doors or shutters 050 
 
 "Steam heating plants; tanks, water towers or 
 wind-mills, not metal frames 040 
 
 "Shaft sinking 060 
 
 "Concrete buildings; freight or passenger ele- 
 vators; fireproofing of buildings; galvanized 
 iron or tin works; gas works, or systems; 
 marble, stone or brick work; road making 
 with blasting; roof work; safe moving; slate 
 work; outside plumbing work; metal smoke- 
 stacks or chimneys 050 
 
 "Excavations not otherwise specified; blast 
 furnaces 040 
 
 "Street or other grading; cable or electric street 
 railways without blasting; advertising signs; 
 ornamental metal work in buildings 035 
 
 "Ship or boat building or wrecking with scaf- 
 folds; floating docks 045 
 
 "Carpenter work not otherwise specified 035 
 
 "Installation of steam boilers or engines; plac- 
 ing wire in conduits; installing dynamos; put- 
 ting up belts for machinery; marble, stone or 
 tile setting, inside work; mantle setting; 
 metal ceiling work; mill or ship wrighting; 
 painting of buildings or structures; installa- 
 tion of automatic sprinklers; ship or boat 
 rigging; concrete laying in floors, foundations 
 or street paving; asphalt laying; covering
 
 520 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 steam pipes or boilers; installation of machin- 
 ery not otherwise specified 030 
 
 "Drilling wells; installing electrical apparatus 
 or fire alarm systems in buildings; house heat- 
 ing or ventilating systems; glass setting; 
 building hot houses; lathing; paper hanging; 
 plastering; inside plumbing; wooden stair 
 building; road making 020 
 
 "OPERATION (INCLUDING REPAIR WORK) OF 
 
 " (All combinations of material take the higher rate 
 
 when not otherwise provided.) 
 
 "Logging railroads; railroads; dredges; inter- 
 urban electric railroads using third rail sys- 
 tem; dry or floating docks 050 
 
 "Electric light or power plants; interurban 
 electric railroads not using third rail system; 
 quarries 040 
 
 "Street railways, all employe's; telegraph or 
 telephone systems; stone crushing; blasting 
 furnaces; smelters; coal mines; gas works; 
 steamboats; tugs; ferries 030 
 
 "Mines, other than coal; steam heating or 
 power plants 025 
 
 "Grain elevators; laundries; waterworks; paper 
 or pulp mills; garbage works 020 
 
 'FACTORIES USING POWER-DRIVEN MACHINERY 
 
 "Stamping tin or metal 045 
 
 "Bridge work; railroad car or locomotive mak- 
 ing or repairing; cooperage; logging with or 
 without machinery; saw mills; shingle mills; 
 staves; veneer; box; lath; packing cases; 
 sash, door or blinds; barrel; keg; pail; basket; 
 tub; wooden ware or wooden fiber ware; roll-
 
 MANNER OF CREATING INSURANCE FUND 521 
 Washington 
 
 ing mills; making steam shovels or dredges; 
 tanks; water towers; asphalt; building mate- 
 rial not otherwise specified; fertilizer; cement; 
 stone with or without machinery; kindling 
 wood; masts and spars with or without ma- 
 chinery; canneries, metal stamping extra; 
 creosoting works; pile treating works 025 
 
 "Excelsior; iron, steel, copper, zinc, brass or 
 lead articles or wares not otherwise specified; 
 working in wood not otherwise specified; 
 hardware; tile; brick; terra cotta; fire clay; 
 pottery; earthenware; porcelain ware; peat 
 fuel; brickettes 020 
 
 "Breweries; bottling works; boiler works; 
 foundries; machine shops not otherwise 
 specified 020 
 
 "Cordage; working in food stuffs, including 
 oils, fruits and vegetables; working in wool, 
 cloth, leather, paper, broom, brush, rubber 
 or textiles not otherwise specified 015 
 
 "Making jewelry, soap, tallow, lard, grease, 
 
 condensed milk 015 
 
 "Creameries; printing; electrotyping; photo- 
 engraving; lithographing 015 
 
 "MISCELLANEOUS WORK 
 
 "Stevedoring; longshoring 030 
 
 "Operating stock yards, with or without rail- 
 road entry; packing houses 025 
 
 "Wharf operation; artificial ice, refrigerating or 
 cold storage plants; tanneries; electric sys- 
 tems not otherwise specified 020 
 
 "Theater stage employe's 015 
 
 "Fire works manufacturing 050 
 
 " Powder works 100
 
 522 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 "The application of this act as between employers 
 and workmen shall date from and include the first 
 day of October, 1911. The payment for 1911 shall 
 be made prior to the day last named, and shall be pre- 
 liminarily collected upon the pay roll of the last 
 preceding three months of operation. At the end of 
 each year an adjustment of accounts shall be made 
 upon the basis of the actual pay roll. Any shortage 
 shall be made good on or before February 1st, follow- 
 ing. Every employer who shall enter into business 
 at any intermediate day shall make his payment for 
 the initial year or portion thereof before commencing 
 operation; its amount shall be calculated upon his 
 estimated pay roll, an adjustment shall be made on or 
 before February 1st of the following year in the man- 
 ner above provided. 
 
 "For the purpose of such payments accounts shall 
 be kept with each industry in accordance with the 
 classification herein provided and no class shall be 
 liable for the depletion of the accident fund from 
 accidents happening in any other class. Each class 
 shall meet and be liable for the accidents occurring 
 in such class. There shall be collected from each class 
 as an initial payment into the accident fund as above 
 specified on or before the 1st day of October, 1911, 
 one-fourth of the premium of the next succeeding 
 year, and one-twelfth thereof at the close of each 
 month after December, 1911: Provided, Any class 
 having sufficient funds credited to its account at the 
 end of the first three months or any month thereafter, ' 
 to meet the requirements of the accident fund, that 
 class shall not be called upon for such month. In 
 case of accidents occurring in such class after lapsed 
 payment or payments said class shall pay the said 
 lapsed or deferred payments commencing at the first
 
 MANNER OF CREATING INSURANCE FUND 523 
 Washington 
 
 lapsed payment, as may be necessary to meet such 
 requirements of the accident fund. 
 
 "The fund thereby created shall be termed the 
 'accident fund' which shall be devoted exclusively 
 to the purpose specified for it in this act. 
 
 "In that the intent is that the fund created under 
 this section shall ultimately become neither more of 
 less than self supporting, exclusive of the expense or 
 administration, the rates in this section named are 
 subject to future adjustment by the legislature, and 
 the classifications to rearrangement following any 
 relative increase or decrease of hazard shown by ex- 
 perience. 
 
 "It shall be unlawful for the employer to deduct or 
 obtain any part of the premium required by this 
 section to be by him paid from the wages or earnings 
 of his workmen or any of them, and the making or 
 attempt to make any such deduction shall be a gross 
 misdemeanor. If, after this act shall have come into 
 operation, it is shown by experience under the act, 
 because of poor or careless management, any estab- 
 lishment or work is unduly dangerous in comparison 
 with other like establishments or works, the depart- 
 ment may advance its classification of risks and 
 premium rates in proportion to the undue hazard. 
 In accordance with the same principle, any such in- 
 crease in classification or premium rate, shall be sub- 
 ject to restoration to the schedule rate. Any such 
 change in classification of risks or premium rates, or 
 any change caused by change in the class of work, 
 occurring during the year shall, at the time of the 
 annual adjustment, be adjusted by the department 
 in proportion to its duration in accordance with the 
 schedule of this section. If, at the end of any year, 
 it shall be seen that the contribution to the accident
 
 524 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 fund by any class of industry shall be less than the 
 drain upon the fund on account of that class, the 
 deficiency shall be made good to the fund on the 1st 
 day of February of the following year by the em- 
 ployers of that class in proportion to their respective 
 payments for the past year. 
 
 "For the purposes of such payment and making 
 good of deficit the particular classes of industry shall 
 be as follows: 
 
 "CONSTRUCTION WORK 
 
 "Class 1. Tunnels; sewer; shaft sinking; drilling 
 wells. 
 
 "Class 2. Bridges; mill wrighting; trestles; steeples, 
 towers or grain elevators not metal framed; tanks, 
 water towers, wind-mills not metal framed. 
 
 "Class 3. Sub-aqueous works; canal other than 
 irrigation or docks with or without blasting; pile driv- 
 ing; jetties; breakwaters; marine railways. 
 
 "Class 4. House moving; house wrecking; safe 
 moving. 
 
 "Class 5. Iron or steel frame structures or parts of 
 structures; fire escapes; erecting fire-proof doors or 
 shutters; blast furnaces; concrete chimneys; freight 
 or passengers elevators; fire proofing of buildings; 
 galvanized iron or tin work; marble, stone or brick 
 work; roof work; slate work; plumbing work; metal 
 smoke stack or chimneys; advertising signs; ornamen- 
 tal metal work in buildings; carpenter work not other- 
 wise specified; marble, stone or tile setting; mantle 
 setting; metal ceiling work; painting of buildings or 
 structures; concrete laying in floors or foundations; 
 glass setting; building hot houses; lathing; paper 
 hanging; plastering; wooden stair building. 
 
 " Class 6. Electric light and power plants or system;
 
 MANNER OF CREATING INSURANCE FUND 525 
 Washington 
 
 telegraph or telephone systems; cable or electric 
 railways with or without rock work or blasting ; water- 
 works or systems; steam heating plants; gas works or 
 systems; installation of steam boilers or engines; plac- 
 ing wires in conduits; installing dynamos; putting up 
 belts for machinery; installation of automatic sprink- 
 lers; covering steam pipes or boilers; installation of 
 machinery not otherwise specified; installing electrical 
 apparatus or fire alarm systems in buildings; house 
 heating or ventilating systems. 
 
 "Class 7. Steam railroads; logging railroads. 
 
 "Class 8. Road making; street or other grading; 
 concrete laying in street paving; asphalt laying. 
 
 "Class 9. Ship or boat building with scaffolds; 
 ship wrighting; ship or boat rigging; floating 
 docks. 
 
 "OPERATION (INCLUDING REPAIR WORK) OF 
 
 "Class 10. Logging; saw mills; shingle mills; lath 
 mills; masts and spars with or without machinery. 
 
 "Class 12. Dredges; dry or floating docks 
 
 " Class 13. Electric light or power plants or systems; 
 steam heat or power plants or systems; electric systems 
 not otherwise specified. 
 
 " Class 14. Street railways. 
 
 "Class 15. Telegraph systems; telephone systems. 
 
 "Class 16. Coal mines. 
 
 "Class 17. Quarries; stone crushing; mines other 
 than coal. 
 
 "Class 18. Blast furnaces; smelters; rolling mills. 
 
 "Class 19. Gas works. 
 
 "Class 20. Steamboats; tugs; ferries. 
 
 "Class 21. Grain elevators. 
 
 "Class 22. Laundries. 
 
 "Class 23. Water works.
 
 526 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 "Class 24. Paper or pulp mills. 
 "Class 25. Garbage works; fertilizer. 
 
 "FACTORIES (USING POWER-DRIVEN MACHINERY) 
 
 "Class 26. Stamping tin or metal. 
 
 "Class 27. Bridge work; making steam shovels or 
 dredges; tanks; water towers. 
 
 "Class 28. Railroad car or locomotive making or 
 repairing. 
 
 "Class 29. Cooperage; staves; veneer; box; packing 
 cases; sash [,] door or blinds; barrel; keg; pail; basket; 
 tub; wood ware or wood fiber ware; kindling wood; 
 excelsior; working in wood not otherwise specified. 
 
 "Class 30. Asphalt. 
 
 "Class 31. Cement; stone with or without machin- 
 ery; building material not otherwise specified. 
 
 "Class 32. Canneries of fruits or vegetables. 
 
 "Class 33. Canneries of fish or meat products. 
 
 "Class 34. Iron, steel, copper, zinc, brass or lead 
 articles or wares; hardware; boiler works; founderies; 
 machine shops not otherwise specified. 
 
 "Class 35. Tile; brick; terracotta; fire clay; pottery; 
 earthenware; porcelain ware." 
 
 "Class 36. Peat fuel; brickettes. 
 
 "Class 37. Breweries; bottling works. 
 
 "Class 38. Cordage; working in wool, cloth, leather, 
 paper, brush, rubber or textile not otherwise specified. 
 
 "Class 39. Working in food stuffs, including oils, 
 fruits, vegetables. 
 
 "Class 40. Condensed milk; creameries. 
 
 "Class 41. Printing, electrotyping; photo-engrav- 
 ing; engraving; lithographing; making jewelry. 
 
 "Class 42. Stevedoring; longshoring; wharf opera- 
 tion.
 
 MANNER OF CREATING INSURANCE .FUND 527 
 Washington 
 
 "Class 43. Stock yards; packing houses; making 
 soap, tallow, lard, grease; tanneries. 
 
 "Class 44. Artificial ice, refrigerating or cold stor- 
 age plants. 
 
 "Class 45. Theater stage employe's. 
 
 "Class 46. Fire works manufacturing; powder 
 works. 
 
 "Class 47. Creosoting works; pile treating works. 
 
 "If a single establishment or work comprises sev- 
 eral occupations listed in this section in different risk 
 classes, the premium shall be computed according to 
 the pay roll of each occupation if clearly separable; 
 otherwise an average rate of premium shall be charged 
 for the entire establishment, taking into considera- 
 tion the number of employe's and the relative hazards. 
 If an employer besides employing workmen in extra 
 hazardous employment shall also employ workmen 
 in employments not extra hazardous the provisions 
 of this act shall apply only to the extra hazardous 
 departments and employments and the workmen 
 employed therein. In computing the pay roll the 
 entire compensation received by every workman em- 
 ployed in extra hazardous employment shall be in- 
 cluded, whether it be in the form of salary, wage, 
 piece work, overtime, or any allowance in the way of 
 profit-sharing, premium or otherwise, and whether 
 payable in money, board, or otherwise. 
 
 " 5. (e) For every case of injury resulting in death 
 or permanent total disability it shall be the duty of 
 the department to forthwith notify the state treasurer, 
 and he shall set apart out of the accident fund a sum 
 of money for the case, to be known as the estimated 
 lump value of the monthly payments provided for it, 
 to be calculated upon the theory that a monthly pay- 
 ment of twenty dollars, to a person thirty years of age,
 
 528 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 is equal to a lump sum payment, according to the 
 expectancy of life as fixed by the American Mortality 
 Table, of four thousand dollars, but the total in no 
 case to exceed the sum of four thousand dollars. 
 The state treasurer shall invest said sum at interest 
 in the class of securities provided by law for the in- 
 vestment of the permanent school fund, and out of the 
 same and its earnings shall be paid the monthly in- 
 stallments and any lump sum payment then or there- 
 after arranged for the case. Any deficiency shall be 
 made good out of, and any balance or overplus shall 
 revert to the accident fund. The state treasurer shall 
 keep accurate account of all such segregations of the 
 accident fund, and may borrow from the main fund to 
 meet monthly payments pending conversion into 
 cash of any security, and in such case shall repay such 
 temporary loan out of the cash realized from the 
 security." 
 
 " 9. Employer's responsibility for safeguard. If 
 any workman shall be injured because of the ab- 
 sence of any safeguard or protection required to be 
 provided or maintained by, or pursuant to, any 
 statute or ordinance, or any departmental regulation 
 under any statute, or be, at the time of the injury, of 
 less than the maximum age prescribed by law for the 
 employment of a minor in the occupation in which 
 he shall be engaged when injured, the employer shall, 
 within ten days after demand therefor by the depart- 
 ment, pay into the accident fund, in addition to the 
 same required by section 4 to be paid : 
 
 "(a) In case the consequent payment to the work- 
 man out of the accident fund be a lump sum, a sum 
 equal to 50 per cent of that amount. 
 
 " (6) In case the consequent payment to the work- 
 man be payable in monthly payments, a sum equal to
 
 MANNER OF CREATING INSURANCE FUND 529 
 Washington 
 
 50 per cent of the lump value of such monthly pay- 
 ment, estimated in accordance \vith the rule stated in 7. 
 
 "The foregoing provisions of this act shall not apply 
 to the employer if the absence of such guard or pro- 
 tection be due to the removal thereof by the injured 
 workman himself or with his knowledge by any of 
 his fellow workmen, unless such removal be by order 
 or direction of the employer or superintendent or 
 foreman of the employer, or any one placed by the 
 employer in control or direction of such workman. 
 If the removal of such guard or protection be by the 
 workman himself or with his consent by any of his 
 fellow workmen, unless done by order or direction of 
 the employer or the superintendent or foreman of the 
 employer, or any one placed by the employer in con- 
 trol, or direction of such workman, the schedule of 
 compensation provided in 5 shall be reduced 10 per 
 cent for the individual case of such workman. 
 
 " 15. Inspection of employer's books. The books, 
 records and pay rolls of the employer pertinent to the 
 administration of this act shall always be open to 
 inspection by the department or its traveling auditor, 
 agent or assistant, for the purpose of ascertaining the 
 correctness of the pay roll, the men employed, and such 
 other information as may be necessary for the depart- 
 ment and its management under this act. Refusal 
 on the part of the employer to submit said books, 
 records and pay rolls for such inspection to any 
 member of the commission, or any assistant presenting 
 written authority from the commission, shall subject 
 the offending employer to a penalty of one hundred 
 dollars for each offense, to be collected by civil action 
 in the name of the state and paid into the accident 
 fund, and the individual who shall personally give 
 such refusal shall be guilty of misdemeanor." 
 34
 
 530 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 For a misrepresentation as to a pay roll an employer 
 is subject to a penalty of ten times the amount of the 
 difference in premium paid and the amount the em- 
 ployer should have paid. 16. See Chapter XXVIII, 
 post, page 534. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 For provision as to mutual insurance companies 
 and plans see 2394-26, Chapter XXXIII, post, 
 page 565.
 
 CHAPTER XXVIII 
 
 PENALTIES FOR FAILURE TO COMPLY WITH LAW 
 
 Page Page 
 
 CALIFORNIA 531 NEW HAMPSHIRE 533 
 
 ILLINOIS 531 NEW JERSEY 533 
 
 KANSAS 532 OHIO 533 
 
 MASSACHUSETTS 532 RHODE ISLAND 533 
 
 MICHIGAN 532 WASHINGTON 533 
 
 NEVADA 532 WISCONSIN 534 
 
 The proceedings in an arbitration before a County 
 Court judge under the Workmen's Compensation Act, 
 are judicial proceedings, and therefore a witness who 
 in such proceedings gives false evidence on a material 
 question may be indicated for perjury. Rex v. Crossley 
 (1909), 2 B. W. C. C. 451. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 The statute seems to contain no penalties except the 
 abolition of common law defenses when an employer 
 fails to bring himself within the terms of the act. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 23. Any willful neglect, refusal, or failure to do 
 the things required to be done by any section, clause, 
 or provision of this act, on the part of the person or 
 persons herein required to do them, or any violation 
 of any of the provisions or requirements hereof, or 
 531
 
 532 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 any attempt to obstruct or interfere with any court 
 officer, member of an arbitration board herein provided 
 for, or with the Secretary of the Bureau of Labor 
 Statistics or his deputy, in the discharge of the duties 
 herein imposed upon any of them, or any refusal to 
 comply with the terms of this act, shall be deemed a 
 misdemeanor, punishable by a fine of not less than 
 ten dollars nor more than five hundred dollars, at the 
 discretion of the court." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 3. Reservation of penalties. Nothing in this act 
 shall affect the liability of the employer or employe" 
 to a fine or penalty under any other statute." 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part IV, 19. If any officer of the (Massachu- 
 setts Employes Insurance) Association shall falsely 
 make oath to any certificate required to be filed with 
 the insurance commissioner, he shall be guilty of 
 perjury." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 Penalty for failure of employer to make reports to 
 the Industrial Accident Board of injuries to employe's. 
 See Part III, 17, Chapter XXIX, post, page 540. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 See Chapter I, ante, page 24, for penalty for failure 
 to adopt provisions of law.
 
 PENALTIES FOR FAILURE TO COMPLY WITH LAW 533 
 
 Washington 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 Failure of the employer to make reports as provided 
 in 12 (see Chapter XXIX, post, page 541), shall be 
 subject to the provisions of 2 of the Act. See Chap- 
 ter II, ante, page 154. 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 The penalty for failure to adopt the compensation 
 features of the act are that common law defenses are 
 eliminated. See Chapter I, ante, page 27. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 38. Juries not to consider act. No provision 
 of this act relating to the amount of compensation 
 shall be considered by, or called to the attention of 
 the jury on the trial of any action to recover damages 
 as herein provided." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 No special provision in the Act on this subject. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 In case of injury because of absence of safeguard re- 
 quired by statute certain penalties by way of additional 
 payments are prescribed. See 9, reprinted in Chap- 
 ter XXVII, ante, page 528.
 
 Wisconsin 
 
 In case the employer defaults in paying the assess- 
 ment to the insurance fund the workman has a common- 
 law right of action, with all common-law defenses re- 
 moved. See 8, reprinted in Chapter I, ante, page 35. 
 
 " 16. Penalty for misrepresentation as to pay roll. 
 
 Any employer who shall misrepresent to the depart- 
 ment the amount of pay roll upon which the premium 
 under this act is based shall be liable to the state in 
 ten times the amount of the difference in premium 
 paid and the amount the employer should have paid. 
 The liability to the state under this section shall be 
 enforced in a civil action in the name of the state. All 
 sums collected under this section shall be paid into the 
 accident fund." 
 
 An employer who refuses to submit his books, records 
 and pay rolls to inspection is guilty of a misdemeanor. 
 15. See Chapter XXVII, ante, page 529. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 The board may increase an award 25 per cent for 
 failure to pay temporary compensation pending the 
 determination of a controversy. 2394-17. Chap- 
 ter XXIV, ante, page 449.
 
 CHAPTER XXIX 
 
 REPORTS OF INJURIES AND AWARDS 
 
 Page Page 
 
 CALIFORNIA 535 NEW HAMPSHIRE 541 
 
 ILLINOIS 538 NEW JERSEY 541 
 
 KANSAS 539 OHIO 542 
 
 MASSACHUSETTS 539 RHODE ISLAND 545 
 
 MICHIGAN 540 WASHINGTON 546 
 
 NEVADA 541 WISCONSIN 546 
 
 CALIFORNIA 
 
 (L. 1911, c. 399; L. 1911, c. 53) 
 
 At a special session of the Legislature in 1911 an Act 
 known as Chapter 53 of that year was passed and ap- 
 proved by the governor, reading as follows: 
 
 " 1. Every employer of labor in this State shall 
 keep a full, true and correct record of every personal 
 injury suffered by his or its employe's, arising out of 
 or in the course of the employment, and resulting in 
 death, or in disability extending over a period of a 
 week or more. Within fifteen days after the happen- 
 ing of any such personal injury, a written report 
 thereof shall be mailed by the employer to the indus- 
 trial accident board informally, or on blanks to be 
 provided by said board for this purpose. The said 
 report shall contain the name of the employer, loca- 
 tion of place of employment, nature of employment, 
 name, address, age, nationality, sex and occupation 
 of the injured person, length of time the injured person 
 had worked at the particular employment previous 
 535
 
 California 
 
 to injury, date and hour of the day or night of the 
 accident, the hour at which the injured employ 6 
 began work on the date of the accident, nature of the 
 injury, cause of the injury and rate of wages of the 
 injured employe". 
 
 " 2. Upon the termination of the disability of the 
 injured employe" or at the expiration of sixty days 
 from the date of the accident, if the disability should 
 extend beyond such period, the employer shall mail 
 to the industrial accident board a supplemental re- 
 port in relation to such disability, informally or on 
 blanks to be provided by said board for this purpose. 
 Such report must contain complete statements as to 
 any claim made by the injured employ 6 for indem- 
 nification for the injury sustained, payment made to 
 him or in his behalf for medical, surgical or other care, 
 claim for compensation or damages made for such 
 injuries and any compromise or settlement of claim 
 for compensation or damages entered into between 
 the employer and such injured employe, his heirs, 
 dependents or legal representative. In the event 
 that any payment shall be made to such injured em- 
 ploye", or his dependents at any time thereafter, in 
 compromise or settlement of a claim for compensation 
 or damages, the amount of such payment shall be 
 forthwith reported by the employer to the industrial 
 accident board. 
 
 " 3. Every physician who attends any such injured 
 employe shall keep a record of his case. Within ten 
 days from the date of his first attendance upon the 
 injured employe", he shall mail to the industrial ac- 
 cident board a report, informally or on blanks to be 
 provided by the said board for this purpose. The 
 said report shall contain the name and address of the 
 employer, name, address, sex and age of the injured
 
 REPORTS OF INJURIES AND AWARDS 537 
 
 California 
 
 employe, date of accident, description of the injury, 
 probable nature and extent of disability. Upon the 
 termination of the disability of the injured employe* 
 or the termination of said physician's attendance 
 upon his case, he shall forthwith mail to the indus- 
 trial accident board a supplemental report in relation 
 to such case describing the physical condition of the 
 injured employ 6, his disability, convalescence or dis- 
 charge from the doctor's care. 
 
 " 4. Every person, firm, association or corporation 
 insuring against the liability of employers for damages 
 or compensation for personal injury to employe's or 
 indemnifying any employer for, or on account of any 
 such liability shall keep a record thereof, and shall 
 within the first five days of each and every month, 
 report in writing to the industrial accident board, 
 informally or on blanks to be provided by said board 
 for this purpose, every such injury to employe's re- 
 ported to it, every claim for damages or compensation 
 for such injury filed with such person, firm, association 
 or corporation and any settlement or compromise of 
 any such claim for damages or compensation whether 
 made with such injured employe", his heirs, dependents 
 or legal representative. 
 
 " 5. Every employer, physician or insurance com- 
 pany, firm or association, shall furnish to the indus- 
 trial accident board all further information required 
 by it in order to constitute a substantially complete 
 and accurate history of each injury and the damages 
 or compensation paid therefor. 
 
 " 6. The record required to be kept in pursuance 
 of the provisions of this act shall at all times be open 
 to inspection of the industrial accident board or any 
 member thereof, or any examiner appointed thereby. 
 Any statement contained in such report shall not be
 
 538 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 admissible as evidence in any action arising out of 
 the death or injury of any employe" by reason of the 
 accident reported. 
 
 " 7. It shall be unlawful for any person, firm, cor- 
 poration, agent, or officer of a firm or corporation to 
 fail, neglect or refuse to comply with any of the pro- 
 visions of this act. Any person, firm, corporation, 
 agent or officer of a firm or corporation that violates 
 or omits to comply with any of the provisions of this 
 act, shall be guilty of a misdemeanor for each and 
 every offense and shall be, upon conviction thereof, 
 punishable by fine of not less than ten dollars or more 
 than one hundred dollars or by imprisonment for not 
 more than thirty days, or by both such fine and im- 
 prisonment. 
 
 " 8. Nothing in this act shall apply to employers 
 of labor engaged in farming, dairying, agricultural or 
 horticultural pursuits, in poultry raising or domestic 
 service. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 19. It shall be the duty of every employer within 
 the provisions of this Act to send to the Secretary of 
 the State Bureau of Labor Statistics in writing an 
 immediate report of all accidents or injuries arising 
 out of or in the course of the employment and resulting 
 in death; it shall also be the duty of every such em- 
 ployer to report between the fifteenth and the twenty- 
 fifth of each month to the Secretary of the State 
 Bureau of Labor Statistics all accidents or injuries 
 for which compensation has been paid under this Act, 
 which accidents or injuries entail a loss to the em- 
 ploye" of more than one week's time, and in case the 
 injury results in permanent disability, such report
 
 REPORTS OP INJURIES AND AWARDS 539 
 
 Massachusetts 
 
 shall be made as soon as it is determined that such 
 permanent disability has resulted or will result from 
 such injury. All such reports shall state the date of 
 the injury, including the time of day or night, the 
 nature of the employer's business, the age, sex, con- 
 jugal condition of the injured person, the specific 
 occupation of the injured person, the direct cause of 
 the injury and the nature of the accident, the nature 
 of the injury, the length of disability and, in case of 
 death, the length of disability before death, the wages 
 of the injured person, whether compensation has been 
 paid to the injured person, or to his legal representa- 
 tive or his heirs or next of kin, the amount of compen- 
 sation paid, the amount paid for physicians', surgeons' 
 and hospital bills, and by whom paid, and the amount 
 paid for funeral or burial expenses, if known. The 
 making of reports as provided herein shall release the 
 employer covered by the provisions of this Act, from 
 making reports to any other officer of the State." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 " 16. Reports as to accidents and compensation. 
 Employers affected by this act shall report annually 
 to the state commissioner and factory inspector such 
 reasonable particulars in regard thereto as he may 
 require? including particulars as to all releases of lia- 
 bility under this act and any other law. The penalty 
 for failure to report or for false report shall invalidate 
 any such release of liability." 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part III, 18. Every employer shall hereafter 
 keep a record of all injuries, fatal or otherwise, re-
 
 540 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 ceived by his employes in the course of their em- 
 ployment. Within forty-eight hours, not counting 
 Sundays and legal holidays, after the occurrence of an 
 accident resulting in personal injury, a report thereof 
 shall be made in writing to the industrial accident 
 board on blanks to be procured from the board for 
 the purpose. Upon the termination of the disability 
 of the injured employ 6 or, if such disability extends 
 beyond a period of sixty days at the expiration of 
 such period, the employer shall make a supplemental 
 report on blanks to be procured from the board for 
 that purpose. The said reports shall contain the 
 name and nature of the business of the employer, 
 the location of the establishment, the name, age, sex 
 and occupation of the injured employe, and shall state 
 the date and hour of the accident, the nature and 
 cause of the injury, and such other information as 
 may be required by the board. 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." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part III, 17. Every employer shall hereafter 
 keep a record of all injuries, fatal or otherwise, re- 
 ceived by his employe's in the course of their employ- 
 ment. Within ten days after the occurrence of an 
 accident resulting in personal injury a report thereof 
 shall be made in writing to the industrial accident 
 board on blanks to be procured from the board for 
 that purpose. 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
 
 REPORTS OF INJURIES AND AWARDS 541 
 
 New Jersey 
 
 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 board. 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." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There are no provisions in the Nevada Law on this 
 subject. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 " 12. Every employer subject to the provisions 
 of this act, shall from time to time make to the Com- 
 missioner of Labor such returns as to its operation 
 as said commissioner may require upon blanks to 
 be furnished by said commissioner. Any employer 
 failing to make such returns when required by said 
 commissioner shall, until such returns are made, be 
 subject to the provisions of section 2 of this act." l 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 Chapter 241 of the Laws of 1911. "An Act creating 
 the Employers' Liability Commission, etc., * * * " 
 
 "2. From and after the fourth day of July next, 
 
 when the said law becomes operative, every employer 
 
 of labor within the state of New Jersey shall report to 
 
 said commission upon the occurrence of any injury to 
 
 1 See Chapter II, ante, page 154.
 
 542 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 any of his employes the name and nationality of the 
 employe so injured, the nature and extent of such in- 
 jury, whether said injured employe and the employer 
 at the time of said injury were subject to the provi- 
 sions of section one or section two of said act, and the 
 amount of compensation when determined, together 
 with such other facts relating to such injury as the 
 commission may request. The information thus re- 
 ceived shall be tabulated, from time to time, and the 
 records thereof shall be the private records of the 
 commission; they shall not be made public or open to 
 inspection unless in the opinion of the commission the 
 public interests shall require it and they shall not be 
 used as evidence against any employer in any suit or 
 action at law brought by any employe" for the re- 
 covery of damages. The commission shall hold meet- 
 ings, from time to time, as they may deem necessary, 
 and shall present to each session of the Legislature a 
 report showing the operations under the said act dur- 
 ing the preceding year, together with any suggestions 
 or recommendations which they may deem necessary 
 or proper for the improvement of the said act, in order 
 to accomplish with the greatest efficiency the purposes 
 of the said act." 
 
 (See L. 1912, c. 156, requiring insurance companies 
 also to make reports.) 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 " 9. Furnishing information. Every employer 
 shall furnish the Board, upon request, all information 
 required by it to carry out the purposes of this act. 
 The Board or any member thereof, or any person 
 employed by the Board for that purpose, shall have
 
 REPORTS OF INJURIES AND AWARDS 543 
 
 Ohio 
 
 the right to examine under oath any employer or 
 officer, agent or employe" thereof. 
 
 " 10. Blanks. Every employer receiving from the 
 Board any blank with directions to fill the same, 
 shall cause the same to be properly filled out as to 
 answer fully and correctly all questions therein pro- 
 pounded, and if unable to do so shall give good and 
 sufficient reasons for such failure. Answers to such 
 questions shall be verified under oath and returned to 
 the Board within the period fixed by the Board for 
 such return." 
 
 " 39. Reports of board. Annually on or before the 
 15th day of November, such Board, under the oath of 
 at least two of its members, shall make a report to the 
 Governor which shall include a statement of the num- 
 ber of awards made by it, and a general statement of 
 the causes of the accidents leading to the injuries for 
 which the awards were made, a detailed statement of 
 the disbursements from the expense fund, and the 
 condition of its respective funds, together with any 
 other matters which such Board deems it proper to 
 call to the attention of the Governor, including any 
 recommendations it may have to make." 
 
 "Chapter Laws of 1911 
 
 "(Senate Bill No. 61.) 
 
 "AN ACT 
 
 "To amend sections 1003 and 1004 of the general 
 
 code, providing for the regulation of workshops and 
 
 factories. 
 "Be it enacted by the General Assembly of the State of 
 
 Ohio: 
 
 " 1. That sections 1003 and 1004 of the general 
 code be amended so as to read as follows:
 
 544 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 " 1003. Every manufacturer of the state shall 
 within three days after the happening of any accident 
 in his establishment resulting in death, or bodily in- 
 jury of such a nature that the person injured does not 
 return to his or her employment in said establishment 
 within two or more days after the occurrence of the 
 accident, shall forward by mail to the chief inspector 
 of workshops and factories a report containing the 
 following particulars in full: 
 
 "1. Name and address of manufacturer, (person, 
 firm or corporation). 
 
 "2. Nature of business in which manufacturer is 
 engaged and place where accident occurred. 
 
 "3. Name, address, sex, age and kind of employ- 
 ment of person killed or injured and whether such per- 
 son is married or single. 
 
 "4. Time of day deceased began work on day of 
 accident, time of day accident occurred, and date of 
 accident or death. 
 
 "5. At what employed when killed or injured, 
 whether such person was familiar with the work at 
 which engaged or the machinery which he was operat- 
 ing and whether such machinery was in good order 
 and guarded so as to prevent accident under ordinary 
 circumstances. If such machinery was not guarded, 
 reasons for not guarding the same. 
 
 "6. Description of manner in which such person 
 was killed or injured. 
 
 "7. Description of nature and extent of injury. 
 
 "8. Number of persons deprived of support in con- 
 sequence of such death or injury. 
 
 "Such manufacturer shall, in all cases of death 
 within six months after the accident, or in case the 
 person injured returns to work in his establishment 
 within six months after the accident, forward by mail
 
 REPORTS OF INJURIES AND AWARDS 545 
 
 Rhode Island 
 
 to the chief inspector of workshops and factories 
 within five days after such death or such return to 
 work, or in case of no death or return to work within 
 six months, then within five days after the expiration 
 of such six months, a supplemental report which shall 
 contain the following particulars in full : 
 
 "1. Name and address of manufacturer. 
 
 "2. Name, sex and age of person injured and date 
 and place where accident occurred. 
 
 "3. A correct statement of the amount of wages 
 paid to such person at the time of such injury and the 
 amount of wages lost during the period between the 
 time of such accident and the time of forwarding such 
 supplemental report. 
 
 "4. The amount of compensation paid by such 
 manufacturer by reason of such injury or death, the 
 names of persons to whom such compensation was 
 paid and a statement of reasons for paying such 
 amounts to such persons. 
 
 " 1004. Whoever violates or fails to comply with 
 any requirement of the preceding section shall be 
 fined not less than fifty dollars, nor more than one 
 hundred dollars for the first offense, and not less than 
 two hundred dollars nor more than five hundred dol- 
 lars for each subsequent offense. 
 
 " 2. That sections 1003 and 1004 of the general 
 code of Ohio are hereby repealed. 
 
 "Approved April 8, 1911." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 571) 
 There is no provision in the Act on this subject. 
 
 35
 
 546 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 " 14. Notice of accident. Whenever any accident 
 occurs to any workman it shall be the duty of the 
 employer to at once report such accident and the 
 injury resulting therefrom to the department, and 
 also to any local representative of the department. 
 Such report shall state: 
 
 " 1. The time, cause and nature of the accident and 
 injuries, and the probable duration of the injury re- 
 sulting therefrom. 
 
 "2. Whether the accident arose out of or in the 
 course of the injured person's employment. 
 
 "3. Any other matters the rules and regulations of 
 the department may prescribe." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 There does not seem to be any provision of the Act 
 requiring accident reports but such reports are re- 
 quired of employers and insurance companies.
 
 CHAPTER XXX 
 
 WHEN LAWS BECOME EFFECTIVE 
 
 Page Page 
 
 CALIFORNIA 547 NEW HAMPSHIRE 549 
 
 ILLINOIS 547 NEW JERSEY 549 
 
 KANSAS 547 OHIO 549 
 
 MASSACHUSETTS 548 RHODE ISLAND 549 
 
 MICHIGAN 548 WASHINGTON 549 
 
 NEVADA 549 WISCONSIN 550 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 31. This act shall take effect and be in force on 
 and after the first day of September, A. D. 1911." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 "25. This Act shall take effect and be in force on 
 and after the first day of May, 1912. 
 
 "Approved by Governor, June 10th, 1911." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 f " 49. This act shall take effect and be in force from 
 and after its publication in the statute book, and the 
 first day of January, 1912. 
 
 "Approved by Governor, March 15, 1911." 
 547
 
 548 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part V, 6. Part IV 1 of this act shall take effect 
 on the first day of January, nineteen hundred and 
 twelve; sections one to three inclusive of Part III 
 shall take effect on the tenth day of May, nineteen 
 hundred and twelve (as amended by L. 1912, c. 571) ; 
 the remainder thereof shall take effect on the first day 
 of July, nineteen hundred and twelve. 
 
 HOUSE OF REPRESENTATIVES. 
 
 July 28, 1911 
 Passed to be enacted. 
 
 JOSEPH WALKER, 
 
 Speaker. 
 
 In Senate, July 28, 1911. 
 Passed to be enacted, 
 
 ALLEN T. TREADWAY, 
 
 President. 
 July 28, 1911. 
 
 Approved, 
 
 EUGENE N. Foss. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part VI, 8. The provisions of this act shall take 
 effect and be in force from and after September first, 
 nineteen hundred twelve." 
 
 1 Part IV is that portion of the Act which creates The Mas- 
 sachusetts Employe's Insurance Association. See Chapter XXVII, 
 ante, page 500.
 
 WHEN LAWS BECOME EFFECTIVE 549 
 
 Washington 
 
 NEVADA 
 (L. 1911, c. 183) 
 ' 15. This act shall take effect July 1, 1911." 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 " 13. This act shall take effect January first, nine- 
 teen hundred and twelve. 
 "Approved April 15, 1911." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 " III. 27. Effective. This act shall take effect on 
 the fourth day of July next succeeding its passage and 
 approval. 
 
 " Approved April 4, 1911." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 In effect January 1, 1912. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. V, 8. This act shall take effect on the first 
 day of October, nineteen hundred and twelve." 
 Approved by Governor, April 29, 1912. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "Passed the House February 23, 1911. 
 "Passed the Senate March 7, 1911. 
 "Approved by the Governor March 14, 1911."
 
 Wisconsin 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 "2394-32 * * * (2.) Sections 2394-3 to 2394-32, 
 inclusive, shall take effect and be in force from and 
 after the passage and publication of this act, and the 
 entire act shall be in force from and after Septem- 
 ber 1st, 1911. 
 
 "Senate: Ayes, 22; Noes, 3; Paired, 2. 
 
 "Assembly: Ayes, 69; Noes, 13; Paired, 2. 
 
 "Approved May 3, 1911."
 
 CHAPTER XXXI 
 
 FEES AND COSTS 
 
 Page Page 
 
 CALIFORNIA 552 NEW HAMPSHIRE 553 
 
 ILLINOIS 552 NEW JERSEY 554 
 
 KANSAS 552 OHIO 554 
 
 MASSACHUSETTS 552 RHODE ISLAND 554 
 
 MICHIGAN 553 WASHINGTON 554 
 
 NEVADA 553 WISCONSIN 555 
 
 Under the British Columbia Act it is held that the 
 Supreme Court has jurisdiction to deal with the ques- 
 tion of costs. Darnley v. Canadian Pacific Railway 
 Company (1909), 15 Br. C. R. 324; 4 B. W. C. C. 449. 
 An injured workman brought an action against his 
 employers at common law and under the Employers' 
 Liability Act, asking in the alternative for the assess- 
 ment of compensation under the Workmen's Com- 
 pensation Act. The employers filed an admission of 
 liability under the latter Act, and made an offer of 
 compensation at the rate of $10 per week. The action 
 failed, and compensation was assessed at 19. 00 per 
 week. It was held that the judge has a discretion as to 
 the costs, and in this case the workman should have the 
 costs of the assessment of compensation under the 
 Workmen's Compensation Act. Wilson v. Kelly and 
 Others (1909), (Supreme Court of British Columbia) 14 
 B. C.437;3B.W. C. C. 599. 
 
 Where an employer succeeded on an application to 
 terminate an award costs were allowed to the employer; 
 1 For attorneys' fees, see Chapter XIX, ante, page 346. 
 551
 
 552 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 it was held that in awarding these costs it was im- 
 material that the proceedings on behalf of the employer 
 were conducted by an insurance company which had 
 issued a liability policy to the employer. Cornish v. 
 Lynch (1910), 3 B. W. C. C. 343. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "21. No fees shall be charged by the clerk of any 
 court for the performance of any official service re- 
 quired by this act, except for the docketing of judg- 
 ments and for certified copies or transcripts thereof. 
 In proceedings to review an award, costs as between 
 the parties shall be allowed or not in the discretion of 
 the court." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 Presumably only usual to court proceedings as there 
 is no special provision of the act relating to the subject. 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 
 For arbitrators' fees and costs of arbitration see 26, 
 in Chapter XXIV, ante, page 413. 
 
 For attorney's fees and lien see 15 and 38, in 
 Chapter XIX, ante, page 346. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 "Part III, 13. Fee of attorneys and physicians 
 for services under this act shall be subject to the ap- 
 proval of the industrial accident board.
 
 FEES AND COSTS 553 
 
 New Hampshire 
 
 Fees of arbitrators are paid by the Association which 
 can deduct one-third thereof from the award found due 
 to the employe. Part III, 9. See Chapter XXIV, 
 ante, page 421 
 
 "Part III, 14. If the committee of arbitration, 
 industrial accident board, or any court before whom 
 any proceedings are brought under this act determines 
 that such proceedings have been brought, prosecuted, 
 or defended without reasonable ground, it shall assess 
 the whole cost of the proceedings upon the party who 
 has so brought, prosecuted or defended them." 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 See Part III, 3, Chapter XXIV, ante, page 423. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 Compensation in Nevada is enforced by action in 
 court and " costs of suit and reasonable attorney's 
 fees" are allowed as in other actions. 9. See Chap- 
 ter XXIV, ante, page 427. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 In proceedings in Court to determine the compensa- 
 tion the court may award such " taxable costs as jus- 
 tice may require." 9. See Chapter XXIV, ante, 
 page 427.
 
 554 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 For attorney's fees see Chapter XIX, ante, page 348. 
 
 The costs of proceedings in court when disputes arise 
 are fixed by the judge presiding. II, paragraph 20. 
 See Chapter XXIV, ante, page 429. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 On an appeal to a court from an award "The costs 
 of such proceeding, including a reasonable attorney's 
 fee to the claimant's attorney to be fixed by the trial 
 judge, shall be taxed against the unsuccessful party." 
 36. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. Ill, 6. * * * The Superior Court may 
 award as costs the actual expenditures, or such part 
 thereof as to the court shall seem meet, but not in- 
 cluding counsel fees, and shall include such costs in its 
 decree. The Superior Court may refuse to award 
 costs, and no costs shall be awarded against an infant 
 or person under disability or against a guardian ad 
 litem." 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 In case of an appeal from an award "if the decision 
 of the department shall be reversed or modified, such 
 (attorney's) fee and the fees of medical and other 
 witnesses and the costs shall be payable out of the ad-
 
 FEES AND COSTS 555 
 
 Wisconsin 
 
 ministration fund, if the accident fund is affected 
 by the litigation," 20. See Chapter XXV, ante, 
 page 464. 
 
 For fees of medical witnesses in appeal cases see 
 25, in Chapter XXV., ante, page 465. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 " 2394-22. No fees shall be charged by the clerk 
 of any court for the performance of any official service 
 required by this act, except for the docketing of judg- 
 ments and for certified copies of transcripts thereof. 
 In proceedings to review an award, costs as between 
 the parties shall be allowed or not in the discretion of 
 the court, but no costs shall be taxed against Said 
 board. In any action for the review of an award, and 
 upon any appeal therein to the supreme court, it shall 
 be the duty of the attorney general, personally, or by 
 an assistant, to appear on behalf of the board, whether 
 any other party defendant shall have appeared or be 
 represented in the action or not."
 
 CHAPTER XXXII 
 
 PREFERENCES OF CLAIMS AND AWARDS FOR 
 COMPENSATION 
 
 Page Page 
 
 CALIFORNIA 556 NEW HAMPSHIRE 558 
 
 ILLINOIS 556 NEW JERSEY 558 
 
 KANSAS 557 OHIO 558 
 
 MASSACHUSETTS 557 RHODE ISLAND 558 
 
 MICHIGAN 557 WASHINGTON 559 
 
 NEVADA 557 WISCONSIN 559 
 
 CALIFORNIA 
 
 
 
 (L. 1911, c. 399) 
 
 " 23. A claim for compensation for the injury or 
 death of any employe, or any award or judgment entered 
 thereon, shall be entitled to a preference over the other 
 debts of the employer if and to the same extent as the 
 wages of such employe" shall be so preferred; but this 
 section shall not impair the lien of any judgment 
 entered upon any award." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 '"11. Any person entitled to payment under the 
 compensation provisions of this act from any em- 
 ployer shall have the same preferential claim therefor 
 against the property of the employer as is now allowed 
 by law for a claim by such person against such em- 
 ployer for unpaid wages or for personal services, such 
 preference to prevail against wage claims of all other 
 employes, not entitled to compensation for injuries." 
 556
 
 PREFERENCES OF CLAIMS AND AWARDS 557 
 
 Nevada 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 There is no provision in the Kansas Act on this 
 subject. 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 There is no provision on this subject in the Massa- 
 chusetts Act as awards for compensation are paid by 
 the association. When the employer is insured in a 
 liability insurance company the company is subject to 
 all the provisions of the act or to supervision, etc. 
 (Part V, 3) therefore the amount is secured. In 
 case an employe sues under the common law for dam- 
 ages there is no preference under this act. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part II, 21. * * * In case of insolvency every 
 liability for compensation under this act shall con- 
 stitute a first lien upon all the property of the employer 
 liable therefor, paramount to all other claims or liens 
 except for wages and taxes, and such liens shall be 
 enforced by order of the court." 
 
 NEVADA 
 (L. 1911, c. 183) 
 
 " 12. A claim for compensation for the injury or 
 death of any employe or any reward or judgment en- 
 tered thereon shall be entitled to a preference over the
 
 558 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 other debts of the employer if and to the game extent 
 as the wages of such employe" shall be so preferred, but 
 this section shall not impair the lien of any judgment 
 entered upon any award." 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 " 10. Any person entitled to weekly payments 
 under this act against any employer shall have the 
 same preferential claim therefor against the assets of 
 the employer as allowed by law for a claim by such 
 person against such employer for unpaid wages or 
 personal services." 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 f 
 
 " III, 22. Compensation a preferential lien. 
 Claims not assignable. The right of compensation 
 granted by this act shall have the same preference 
 against the assets of the employer as is now or may 
 hereafter be allowed by law for a claim for unpaid 
 wages for labor." 
 
 OHIO 
 
 (L. 1911, c. 000) 
 There is no provision on this subject in the Ohio Act. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. II, 24. Claims preferred. The claim for 
 compensation under this act, or under any alternative 
 scheme permitted by Article IV of this act, and any
 
 PREFERENCES OF CLAIMS AND AWARDS 559 
 
 Wisconsin 
 
 decree on any such claim, shall be entitled to a pref- 
 erence over the unsecured debts of the employer here- 
 after contracted to the same amount as the wages of 
 labor are now preferred by the laws of this state; but 
 nothing herein shall be construed as impairing any 
 lien which the employe may have acquired." 
 
 Article IV provides for an alternative scheme. See 
 Chapter XXVII. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 There is no provision in the Washington Act on this 
 subject. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 " 2394-24. The whole claim for compensation for 
 the injury or death of any employe" or any award or 
 judgment thereon, shall be entitled to a preference 
 over the unsecured debts of the employer hereafter 
 contracted, but this section shall not impair the lien 
 of any judgment entered upon any award."
 
 CHAPTER XXXIII 
 
 ENFORCEMENT BY WORKMEN OF CLAIMS FOR 
 COMPENSATION DIRECTLY AGAINST LIABILITY 
 INSURANCE COMPANIES 
 
 Page Page 
 
 CALIFORNIA 561 NEW HAMPSHIRE 564 
 
 ILLINOIS 562 NEW JERSEY 564 
 
 KANSAS 562 OHIO 564 
 
 MASSACHUSETTS 563 RHODE ISLAND 565 
 
 MICHIGAN 563 WASHINGTON 565 
 
 NEVADA 564 WISCONSIN 565 
 
 Under the British Columbia Compensation Act it 
 was held that a workman could not recover from a 
 liability insurance company which had issued a policy 
 to his employer who subsequently became insolvent. 
 Disourdi v. Sullivan Group Mining Co. and Another 
 (1910), 15 B. C. R. 305; 4 B. W. C. C. 462. 
 
 An injured workman was paid compensation by a 
 company which became insolvent and was wound up. 
 The company was insured against accidents under the 
 Act and on the company ceasing to pay compensation 
 the workman brought proceedings against the insurers. 
 The insurers alleged that there was a dispute between 
 them and the workman's employers as to whether the 
 latter had taken precautions against accidents, as re- 
 quired by the policy, and that until this dispute had 
 been settled by arbitration, in accordance with the 
 terms of the policy, the employers could not claim 
 against them and that the workman had no greater 
 rights than his employers had. The contention of the 
 
 560
 
 ENFORCING CLAIMS AGAINST INSURANCE COMPANIES 561 
 
 California 
 
 insurers was upheld by the County Court judge and 
 this decision was affirmed by the Court of Appeal. 
 King v. Phoenix Assurance Co. (1910), 3 B. W. C. C, 
 442. 
 
 There must be an admission of liability on the part 
 of the insurer, or a finding by a competent tribunal, 
 before the provisions of 6 of the British Columbia 
 Workmen's Compensation Act of 1902, as to the pay- 
 ment into court, can be invoked. Disourdi v. Sullivan 
 Group Mining Company and Maryland Casualty Co. 
 (No. 2} (1909), 14 B. C. R. 256; 2 B. W. C. C. 508. 
 In the Supreme Court of British Columbia it was held 
 that any right which the applicant for compensation 
 might have against the employers under 6 of the 
 British Columbia Compensation Act must be decided 
 in an action commenced in the ordinary way and that 
 the rules made under 6 were ultra vires. Disourdi v. 
 Sullivan Group Mining Co. and Maryland Casualty Co. 
 (No. 3), 14 B. C. R. 273; 2 B. W. C. C. 514. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 24. Nothing in this act shall affect the organiza- 
 tion of any mutual or other insurance company, or 
 any existing contract for insurance or employer's 
 liability, nor the right of the employer to insure in 
 mutual or other companies, in whole or in part, against 
 such liability, or against the liability for the compen- 
 sation provided for by this act, or to provide by mu- 
 tual or other insurance, or by arrangement with his 
 employe's, or otherwise, for the payment to such em- 
 ploye's, their families, dependents, or representatives, 
 of sick, accident or death benefits, in addition to the 
 36
 
 562 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 compensation provided for by this act. But liability 
 for compensation under this act shall not be reduced 
 or affected by any insurance, contributions, or other 
 benefit whatsoever due to or received by the person 
 entitled to such compensation, and the person so en- 
 titled shall, irrespective of any insurance or other 
 contract, have the right to recover the same directly 
 from the employer, and in addition thereto, the right 
 to enforce in his own name, in the manner provided 
 in this act, the liability of any insurance company 
 which may, in whole or in part, have insured the lia- 
 bility for such compensation ; provided, however, that 
 payment in whole or in part of such compensation by 
 either the employer or the insurance company, shall, 
 to the extent thereof, be a bar to recovery against the 
 other of the amount so paid, and provided further, 
 that as between the employer and the insurance com- 
 pany, payment by either directly to the employe", or 
 to the person entitled to compensation, shall be sub- 
 ject to the conditions of the insurance contract be- 
 tween them." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 No provision in Act on this subject. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 ' " 34. Insurance. Where the payment of compen- 
 sation to the workman is insured, by a policy or pol- 
 icies, at the expense of the employer, the insurer shall 
 be subrogated to the rights and duties under this act 
 of the employer, so far as appropriate." 
 
 " 30. Staying proceedings upon agreement or award. 
 At any time after the filing of an agreement or award
 
 ENFORCING CLAIMS AGAINST INSURANCE COMPANIES 563 
 
 Michigan 
 
 and before judgment has been granted thereon, the 
 employer may stay proceedings thereon by filing in 
 the office of the clerk of the district court wherein such 
 agreements or award is filed: (a) A proper certificate 
 of a qualified insurance company that the amount of 
 the compensation to the workman is insured by it: 
 (6) A proper bond undertaking to secure the payment 
 of the compensation. Such certificate or bond shall 
 first be approved by a judge of the said district court. 
 
 (L. 1911, c. 751) 
 
 "Part V, 3. Any liability insurance company 
 authorized to do business within this Commonwealth 
 shall have the same right as the association to insure 
 the liability to pay the compensation provided for by 
 Part II of this act, and when such liability company 
 issues a policy conditioned to pay such compensation 
 the holder of such policy shall be regarded as a sub- 
 scriber so far as applicable within the meaning of this 
 act, and when any such company insures such pay- 
 ment of compensation it shall be subject to the pro- 
 visions of Parts I, II, III and V and of section twenty- 
 two of Part IV of this act, and shall file with the 
 Insurance Department its classifications of risks and 
 premiums relating thereto and any subsequent pro- 
 posed classifications or premiums, none of which shall 
 take effect until the Insurance Commissioner has ap- 
 proved the same as adequate for the risks to which 
 they respectively apply." (As amended by L. 1912, 
 c. 571.) 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 There is no provision on this subject in the Michigan 
 Act. 
 
 36
 
 564 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision on this subject in the Nevada 
 law. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 Any employer to take advantage of the provisions 
 of the Act, must either satisfy the Commissioner of 
 Labor that he is of sufficient financial ability to comply 
 with the act, or must file a bond "in such form and 
 amount as the commissioner may prescribe." This 
 bond may be enforced by the Commissioner of Labor, 
 "for the benefit of all persons to whom such employer 
 may become liable under this Act in the same manner 
 as probate bonds are enforced." 3. See Chapter II, 
 ante, page 155. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 There is no provision in the New Jersey Act permit- 
 ting a workman to enforce his claim directly against an 
 insurance company which insures his employer. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no provision on this subject in the Ohio Act. 
 In fact in Ohio no insurance company can write com- 
 pensation insurance, because no employer can adopt 
 the compensation feature of the statute except by 
 paying premiums into the state insurance fund.
 
 ENFORCING CLAIMS AGAINST INSURANCE COMPANIES 565 
 
 Wisconsin 
 
 RHODE ISLAND 
 
 (L. 1912, c. 571) 
 There is no provision in the Act on this subject. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 There is no provision in the Washington Act on this 
 subject. In fact the only way in which an employer 
 can adopt the compensation feature of the statute is 
 to pay premiums into the state insurance fund. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 ' "2394-26. Nothing in this act shall affect the 
 organization of any mutual or other insurance com- 
 pany, or any existing contract for insurance of em- 
 ployers' liability, nor the right of the employer to in- 
 sure in mutual or other companies, in whole or in part, 
 against such liability, or against the liability for the 
 compensation provided for by this act, or to provide 
 by mutual or other insurance, or by arrangement 
 with his employes, or otherwise, for the payment to 
 such employe's, their families, dependents, or repre- 
 sentatives, of sick, accident, or death benefits in addi- 
 tion to the compensation provided for by this act. But 
 liability for compensation under this act shall not be 
 reduced or affected by any insurance, contribution, or 
 other benefit whatsoever, due to or received by the 
 person entitled to such compensation, and the person 
 so entitled shall, irrespective of any insurance or other 
 contract, have the right to recover the same directly 
 from the employer; and in addition thereto, the right
 
 566 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 to enforce in his own name, in the manner provided 
 in this act, the liability of any insurance company 
 which may, in whole or in part, have insured the 
 liability for such compensation; provided, however, 
 that payment in whole or in part of such compensa- 
 tion by either the employer or the insurance company, 
 shall, to the extent thereof, be a bar to recovery against 
 the other of the amount so paid, and provided further, 
 that as between the employer and the insurance com- 
 pany, payment by either directly to the employe", 
 or to the person entitled to compensation, shall be 
 subject to the conditions of the insurance contract 
 between them."
 
 CHAPTER XXXIV 
 
 INSURANCE CONTRACTS PRESUMED TO BE SUBJECT 
 
 TO ACT 
 
 Page Page 
 
 CALIFORNIA 567 NEW HAMPSHIRE 569 
 
 ILLINOIS 567 NEW JERSEY 569 
 
 KANSAS 568 OHIO 569 
 
 MASSACHUSETTS 569 RHODE ISLAND 570 
 
 MICHIGAN 569 WASHINGTON 570 
 
 NEVADA 569 WISCONSIN. ... 570 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 25. Every contract for the insurance of the com- 
 pensation herein provided for, or against liability there- 
 for, shall be deemed to be made subject to the provi- 
 sions of this act, and provisions thereof inconsistent 
 with this act shall be void. No company shall enter 
 into any such contract of insurance unless such com- 
 pany shall have been approved by the commissioner 
 of insurance, as provided by law." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 15. This Act shall not affect or disturb the 
 continuance of any existing insurance, mutual aid, 
 benefit or relief association or department, whether 
 maintained in whole or in part by the employer or 
 whether maintained by the employe's, the payment of 
 benefits of such association or department being 
 guaranteed by the employer or by some person, firm 
 or corporation for him: Provided, the employer con- 
 567
 
 568 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 tributes to such association or department an amount 
 sufficient to insure the employe's or other beneficiary 
 the full compensation herein provided, exclusive of the 
 cost of the maintenance of such association or de- 
 partment without any expense to the employe". This 
 Act shall not prevent the organization and main- 
 taining under the insurance law of this State of any 
 benefit or insurance company for the purpose of insur- 
 ing against the compensation provided for in this Act, 
 the expense of which is maintained by the employer. 
 This Act shall not prevent the organization or main- 
 taining under the insurance laws of this State of any 
 voluntary mutual aid, benefit or relief association 
 among employe's for the payment of additional acci- 
 dent or sick benefits. 
 
 "No existing insurance, mutual aid, benefit or 
 relief association or department shall, by reason of 
 anything herein contained, be authorized to discon- 
 tinue its operation without first discharging its obliga- 
 tions to any and all persons carrying insurance in the 
 same or entitled to relief or benefits therein. 
 
 "Any contract of employment, relief benefit, or 
 . insurance or other device whereby the employe" is 
 required to pay any premium or premiums for insur- 
 ance against the compensation provided for in this 
 Act shall be null and void, and any employer with- 
 holding from the wages of any employe" any amount 
 for the purpose of paying any such premium shall be 
 guilty of a misdemeanor and punishable by a fine of 
 not less than ten dollars nor more than twenty-five 
 dollars in each offense in the discretion of the court." 
 
 KANSAS 
 
 (L. 1911, c. 218) 
 See 34, in Chapter XXXIII, ante, page 562. 

 
 INSURANCE CONTRACTS SUBJECT TO ACT 569 
 Ohio 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 See Part V, 3, in Chapter XXXIII, ante, page 563. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 Every contract of insurance against liability for 
 compensation is deemed made subject to the provisions 
 of the Act. See Part IV, 3, Chapter XXVII, ante, 
 page 507. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 There is no provision on this subject in the Nevada 
 law. 
 
 NEW HAMPSHIRE 
 
 (L. 1911, c. 000) 
 
 There is no provision on this subject in the New 
 Hampshire Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 There is no provision in the New Jersey Act on this 
 subject. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no provision on this subject in the Ohio 
 Act. In fact no insurance company can insure an 
 employer against liability under the compensation
 
 570 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 feature of the statute, as the only method in which 
 an employer can adopt this feature is by contributing 
 to the state insurance fund. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 571) 
 There is no provision in the Act on this subject. 
 
 WASHINGTON 
 (L. 1911, c. 74) 
 
 There is no provision in the Washington Act on this 
 subject. In fact the only method in which an employer 
 can adopt the compensation feature of the statute 
 is by paying premiums into the state insurance fund. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 "2394-27. 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 provisions thereof 
 inconsistent with this act shall be void. No company 
 shall enter into any such contract of insurance unless 
 such company shall have been approved by the com- 
 missioner of insurance, as provided by law. For the 
 purposes of this act, each employe" shall constitute a 
 separate risk within the meaning of section 1898d of 
 the statutes."
 
 CHAPTER XXXV 
 
 COMPROMISING CLAIMS AND AWARDS 
 
 Page Page 
 
 CALIFORNIA 574 NEW HAMPSHIRE 576 
 
 ILLINOIS 574 NEW JERSEY 577 
 
 KANSAS 575 OHIO 577 
 
 MASSACHUSETTS 575 RHODE ISLAND 577 
 
 MICHIGAN 575 WASHINGTON 577 
 
 NEVADA 576 WISCONSIN 578 
 
 In general. 
 
 A workman employed by contractors was knocked 
 down and injured by the defendants' tramcar. He 
 received several weekly payments from his employers 
 and gave them receipts therefor. Subsequently he re- 
 paid to the employers the amount he had received from 
 them, and sued the defendants for damages. At the 
 trial the workman stated that he did not understand 
 the nature and terms of the receipts he had signed. The 
 County Court judge dismissed the case, holding, as a 
 matter of law, that he had recovered compensation 
 within the meaning of 6 of the Workmen's Compensa- 
 tion Act, and that his action was therefore barred. The 
 Court of Appeal held that it was a question for the jury 
 whether the plaintiff understood the nature and effect 
 of the receipts he had signed. Huckle v. The London 
 County Council (1910), 4 B. W. C. C. 113. 
 
 An illiterate and ignorant workman gave a cumula- 
 
 1 For commutation of awards and agreed compensation see Chap- 
 ter XI, ante, page 294. 
 
 571
 
 572 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 In general 
 
 tive receipt for all payments of compensation received 
 by him. This sum included one week in advance, but 
 no other additional payment. It was found, as a fact, 
 that the workman was not recovered at this date, nor 
 at the date of the hearing of the arbitration. The 
 employer applied to record a memorandum of agree- 
 ment of final discharge, and the workman at the same 
 time applied to record one to pay him compensation. 
 It was held that the " final discharge" was not a 
 genuine agreement, and should not be recorded, but 
 that the workman's memorandum should be recorded. 
 Macandrew v. Gilhooley (1911), 48 Scotch L. R. 511; 
 4 B. W. C. C. 370. 
 
 A judge refused to record a memorandum of agree- 
 ment for a lump sum settlement on the ground of in- 
 adequacy. The workman then applied for compensa- 
 tion, and the judge, finding that his incapacity was no 
 longer due to the accident and that the amount in fact 
 paid under the settlement was enough to cover all 
 compensation due for the short period during which 
 the incapacity had been due to the accident, decided 
 in favor of the employers. The Court of Appeal held 
 that the judge was entitled to decide the application 
 for compensation freely on the evidence and was not 
 bound by his previous decision to award compensation. 
 Beech v. Bradford Corporation (1911), 4 B. W. C. C. 236. 
 
 A workman entitled to compensation under the 
 Workmen's Compensation Act of 1906 signed a dis- 
 charge which purported to be in full satisfaction of all 
 claims, past and future, in the belief that he was merely 
 signing a receipt for compensation past due. The 
 employers' cashier took the discharge in the belief that 
 the workman had fully recovered, whereas he was st
 
 COMPROMISING CLAIMS AND AWARDS 573 
 
 In general 
 
 totally incapacitated. Compensation was awarded, it 
 being held that the workman was not barred from re- 
 covering compensation by the discharge. Ellis v. The 
 Lochgelly Iron and Coal Co. (1909), 46 Scotch L. R. 
 960; 2 B. W. C. C. 136. 
 
 Where a claimant signed a release expressing a con- 
 sideration of 35 and it appeared only the sum of 
 17, 10s. was paid, and the balance was paid as wages, 
 it was held that there was accord but no satisfaction, 
 and that the receipt did not contain a genuine agree- 
 ment under the Act. Hawkes v. Richard Coles and Sons 
 (1910), 3 B. W. C. C. 163. 
 
 A compensation agreement between the workman 
 and his employers stated that the workman should re- 
 ceive a lump sum of money and be given regular em- 
 ployment, as foreman in the works, at specified wages. 
 The employers paid the sum of money and kept the 
 workman in their employment on the terms arranged 
 for nearly three years, when they dismissed him owing 
 to a dispute. The workman thereupon brought an 
 action against them for damages for breach of con- 
 tract, and it was held that the action could not be main- 
 tained as there was no breach of contract, the employers 
 having given the workman regular employment for a 
 considerable period. Lawrie v. James Brown & Co. 
 (1908), 45 Scotch L. R. 477; 1 B. W. C. C. 137. 
 
 A seaman sustained serious injuries. He was con- 
 veyed to a hospital while unconscious and remained 
 there after his discharge from the ship for fifteen weeks. 
 The shipowners made payments for his maintenance 
 during that period equal to the full weekly compensa- 
 tion for which they were liable. They were not legally 
 liable to make these payments under the Merchant
 
 574 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 Shipping Act. It was held that such payments were a 
 benefit which the workman received from the employers 
 during the period of his incapacity, and that they must 
 be taken into account in fixing the amount of compen- 
 sation. Kempson v. Owners of Schooner "Moss Rose" 
 (1910), 4 B. W. C. C. 101. 
 
 On an application for compensation account must 
 be taken of a lump sum paid by the employer in full 
 settlement. Horsman v. Glasgow Navigation Co. (1909), 
 3 B. W. C. C. 27. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 " 28. Nothing in this act contained shall be con- 
 strued as impairing the right of parties interested, 
 after the injury or death of an employe, to compromise 
 and settle upon such terms as they may agree upon, 
 any liability which may be claimed to exist under 
 this act on account of such injury or death, nor as 
 conferring upon the dependents of any injured em- 
 ploye 1 any interest which he may not divert by such 
 settlement or for which he or his estate shall, in the 
 event of such settlement by him, be accountable to 
 such dependents or any of them." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 12. Any contract or agreement made by any 
 employer or his agent or attorney with any employ^ 
 or any other beneficiary of any claim under the pro- 
 visions of this Act within seven days after the injury 
 shall be presumed to be fraudulent. 
 
 " 13. No employe or beneficiary shall have power
 
 COMPROMISING CLAIMS AND AWARDS 575 
 
 Michigan 
 
 to waive any of the provisions of this Act in regard 
 to the amount of compensation which may be payable 
 to such employe or beneficiary hereunder." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "23. Agreements. Compensation due under this 
 act may be settled by agreement. Every such agree- 
 ment, other than a release, shall be in the form herein- 
 after provided." 
 
 But see 29 and 32, in Chapter XXVI, ante, page 
 487, for right to cancel or modify agreements or awards. 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 The agreement as to compensation must be filed 
 with and approved by the Industrial Accident Board. 
 Part III, 4. See Chapter XXIV, ante, page 419. 
 
 " Part II, 22. Whenever any weekly payment has 
 been continued for not less than six months, the lia- 
 bility therefor may in unusual cases be redeemed by 
 the payment of a lump sum by agreement of the par- 
 ties, subject to the approval of the Industrial Acci- 
 dent Board." 
 
 MICHIGAN 
 (L. 1912, No. 3) 
 
 "PART VI 
 "MISCELLANEOUS PROVISIONS 
 
 " 1. If the employe, or his dependents, in case of 
 his death, of any employer subject to the provisions
 
 576 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 of this act files any claim with, or accepts any pay- 
 ment from such employer, or any insurance company 
 carrying such risks, or from the commissioner of 
 insurance on account of personal injury, or makes any 
 agreement, or submits any question to arbitration 
 under this act, such action shall constitute a release 
 to such employer of all claims or demands at law, if 
 any, arising from such injury." 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 " 14. Nothing in this act contained shall be con- 
 strued as impairing the right of parties interested 
 after the injury or death of an employe" to compromise 
 or settle upon such terms as they may agree upon any 
 liability which may be claimed to exist under this 
 act on account of such injury or death, nor as con- 
 ferring upon the dependents of any injured employe" 
 any interest which he may not divert by such settle- 
 ment or for which he or his estate shall in the event 
 of such settlement by him be accountable to such de- 
 pendents or any of them." 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 There is no prohibition against compromising claims 
 in the New Hampshire Act. Nor is there any power 
 of revision vested in any person when an employer 
 and his employe" agree upon a basis of compensation. 
 In fact the statute plainly contemplates such agree- 
 ments and provides a remedy only when an agree- 
 ment is not reached. See 9, in Chapter XXIV, ante, 
 page 427.
 
 COMPROMISING CLAIMS AND AWARDS 577 
 
 Washington 
 
 NEW JERSEY 
 (L. 1911, c. 95) 
 
 No compensation payment can be commuted by 
 payment of a lump sum unless by order of a judge of 
 the Court of Common Pleas "in the interest of justice." 
 2, paragraph 21. See Chapter XI, ante, page 299. 
 
 There has been much discussion as to whether a 
 general release taken by an employer in consideration 
 of the payment of a lump sum to an injured workman 
 is binding under the subdivision of the Act referred to 
 above. Doubtless such releases are not void, but they 
 may be voidable if it appears that an injustice has 
 been done to the employe*. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 There is no provision on this subject in the Ohio 
 Act. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 571) 
 
 The parties may agree upon the compensation to be 
 paid. Art. Ill, 1. See Chapter XXIV, ante, page 438. 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 There is no provision in the Washington Act on this 
 subject. 
 
 37
 
 578 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 The employer may compromise claims under the 
 Act, but every compromise is subject to review by 
 the industrial accident board and may be set aside, 
 modified or confirmed within one year from the time 
 of such compromise. See 2394-15, Chapter XXIV, 
 ante, page 448.
 
 CHAPTER XXXVI 
 
 EXPENSES OF ADMINISTERING LAW, OTHER THAN 
 PAYMENTS OF AWARDS FOR COMPENSATION 
 
 Page Page 
 
 CALIFORNIA 579 NEW HAMPSHIRE 581 
 
 ILLINOIS 579 NEW JERSEY 581 
 
 KANSAS 579 OHIO 581 
 
 MASSACHUSETTS 580 RHODE ISLAND 582 
 
 MICHIGAN 580 WASHINGTON 583 
 
 NEVADA 581 WISCONSIN 584 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "29. The sum of fifty thousand dollars is hereby 
 appropriated out of any moneys in the state treasury, 
 not otherwise appropriated, to be used by the indus- 
 trial accident board in carrying out the purposes of 
 this act, and the controller is hereby directed to draw 
 his warrant on the general fund from time to time in 
 favor of said industrial accident board for the amounts 
 expended under its direction, and the treasurer is 
 hereby authorized and directed to pay the same." 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 There is no special provision in the Act on this sub- 
 ject. 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 The arbitrator's fees are paid by the parties. 26. 
 See Chapter XXIV, ante, page 413. 
 
 579
 
 580 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 The regular courts, where controversies are de- 
 termined in lieu of arbitration, are, of course, main- 
 tained at the expense of the State. 
 
 MASSACHUSETTS 
 
 (L. 1911, c. 751) 
 
 All expense of administering the law is paid by the 
 State by direct appropriations. See Chapter XXIV, 
 ante, page 418. Except, of course, the expenses of the 
 Massachusetts Employes Insurance Association which 
 are paid by that association from its own funds. Part 
 IV, 14, 15 and 16. The first board of directors of 
 the association may spend $15,000 appropriated by the 
 State. Part IV, 24. 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 The expenses of administering the law are a state 
 charge. See Part IV, Chapter XXVII, ante, page 505. 
 
 "Part VI, 7. To carry out the provisions of this 
 act there is hereby appropriated for the expenses of 
 the industrial accident board for the fiscal year ending 
 June thirtieth, nineteen hundred thirteen, and an- 
 nually thereafter, the sum of twenty-five thousand 
 dollars. The auditor general shall add to and in- 
 corporate into the state tax the sum of twenty-five 
 thousand dollars annually, which said sum shall be 
 included in the state taxes apportioned by the auditor 
 general on all taxable property of the state, to be 
 levied, assessed and collected as other state taxes, and 
 when so assessed and collected to be paid into the 
 general fund to reimburse said fund for the appropria- 
 tion made by this act."
 
 EXPENSES OF ADMINISTERING LAW 581 
 
 Ohio 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 The Nevada law is enforced in the regular courts 
 and therefore there is no special provision for admin- 
 istration expenses. 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 000) 
 
 The Commissioner of Labor, who has general super- 
 vision of the administration of the Act, is a state officer 
 and is paid as such. Controversies are settled in the 
 regular courts so there are no special expenses of ad- 
 ministration other than the increase caused by the 
 excess of work due to the operation of the Act. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 See Chapter 241 of the Laws of 1911, reprinted in 
 Chapter XXIV of this work, ante, page 431, creating 
 an employers' liability commission to gather data 
 and study the operation of the Act, at the expense of 
 the State. 
 
 As disputes relating to compensation are determined 
 by the Court of Common Pleas there is no special 
 provision for paying the expenses of administering 
 the Act. See Chapter XXIV, ante, page 428. 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 The State Insurance Law of Ohio is administered 
 at the expense of the State. No part of the sum col-
 
 582 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island 
 
 lected from employers to create an insurance fund is 
 used for the purposes of administration. See 1-15, 
 reprinted in Chapter XXIV, ante, page 432. 
 
 "37. Expenditures of board. The Board may 
 make necessary expenditures to obtain statistical and 
 other information to establish the classes provided for 
 in section 17. The salaries and compensation of the 
 secretary, and all actuaries, accountants, inspectors, 
 examiners, experts, clerks and other assistants, and 
 all other expenses of the board herein authorized, in- 
 cluding the premium to be paid by the state treasurer 
 for the bond to be furnished by him, shall be paid out 
 of the state treasury upon vouchers, signed by two 
 of the members of such Board, presented to the auditor 
 of state, who shall issue his warrant therefor as in 
 other cases. " 
 
 "40. Expenses preliminary. The expense of 
 such Board in carrying out the provisions of this act 
 shall be paid until January 1, 1912, out of the general 
 revenue of the State not otherwise appropriated. Such 
 expense shall not exceed twenty-five thousand dollars 
 in addition to the salaries of members of such board. 
 
 "41. Expenses from fund. The expenses of such 
 Board in carrying out the provisions of this act shall 
 be paid from January 1st, 1912, to January 1st, 1913, 
 out of the general revenue fund of the State not other- 
 wise appropriated. Such expense shall not exceed 
 one hundred thousand dollars in addition to the salary 
 of the members." 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 The law is administered by the courts.
 
 EXPENSES OF ADMINISTERING LAW 583 
 
 Wisconsin 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "29. Appropriations. 
 
 "There is hereby appropriated out of the state 
 treasury the sum of one hundred and fifty thousand 
 dollars, or so much thereof as may be necessary, to be 
 known as the administration fund, out of which the 
 salaries, traveling and office expenses of the depart- 
 ment shall be paid, and also all other expenses of the 
 administration of the accident fund; and there is 
 hereby appropriated out of the accident fund for the 
 purpose to which said fund is applicable the sum of 
 $1,500,000.00, or so much thereof as shall be necessary 
 for the purposes of this act." 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 The salaries and other expenses of the Industrial 
 Accident Board are paid out of the general funds of 
 the State. See 2394-14, Chapter XXIV, ante, page 
 447 
 
 " 2394-30. A sum sufficient to carry out the pro- 
 visions of this act is hereby appropriated out of any 
 money in the treasury not otherwise appropriated.
 
 CHAPTER XXXVII 
 
 REPEALING ACTS 
 
 Page Page 
 
 CALIFORNIA 584 NEW HAMPSHIRE 586 
 
 ILLINOIS 584 NEW JERSEY 586 
 
 KANSAS 585 OHIO 588 
 
 MASSACHUSETTS 585 RHODE ISLAND 589 
 
 MICHIGAN 586 WASHINGTON 589 
 
 NEVADA 586 WISCONSIN 591 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 "30. All acts or parts of acts inconsistent with 
 this act are hereby repealed." 
 
 For provision as to election of remedies see Chap- 
 ter I, ante, page 9. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 " 23}/. The right of action for damages caused 
 by any such injury, at common law or any other 
 statute in force prior to the taking of effect hereof 
 shall not be affected by this Act and every existing 
 right of action for negligence or to recover damages 
 for injury resulting in death, is continued and nothing 
 in this Act shall be construed as limiting the right of 
 such action so construed before the taking effect of 
 this Act. 
 
 "24. The invalidity of any portion of this Act 
 584
 
 REPEALING ACTS 585 
 
 Massachusetts 
 
 shall in no way affect the validity of any other por- 
 tion thereof which can be given effect without such 
 invalid part." 
 
 KANSAS 
 (L. 1911, c. 218) 
 
 "48. Nothing in this act shall be construed to 
 amend or repeal section 6999 of the General Statutes 
 of Kansas of 1909, or House bill No. 240 of the Session 
 of 1911, the same being 'An act relating to the lia- 
 bility of common carriers by railroads to their em- 
 ployes in certain cases, and repealing all acts and 
 parts of acts so far as the same are in conflict here- 
 with.' 
 
 MASSACHUSETTS 
 (L. 1911, c. 751) 
 
 "PART V 
 "MISCELLANEOUS PROVISIONS 
 
 " 1. If an employ 6 of a subscriber files any claim 
 with or accepts any payment from the association on 
 account of personal injury, or makes any agreement, 
 or submits any question to arbitration, under this act, 
 such action shall constitute a release to the subscriber 
 of all claims or demands at law, if any, arising from 
 the injury." 
 
 "4. Sections one hundred and thirty-six to one 
 hundred and thirty-nine, inclusive, of chapter five 
 hundred and fourteen of the acts of the year nineteen 
 hundred and nine are hereby repealed." (As amended 
 by L. 1912, c. 571.)
 
 586 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 "Part VI, 3. This act shall not affect any cause 
 of action existing or pending before it went into 
 effect." 
 
 " 5. All acts or parts of acts inconsistent with this 
 act are to be deemed replaced by this act, and to that 
 end are hereby repealed. 
 
 " 6. The legislature intends that part five of this 
 act shall be deemed separate from the other parts 
 thereof, so that if said part five should fail or be ad- 
 judged invalid or unconstitutional it shall in no way 
 affect any other part of this act." 
 
 Approved March 20, 1912. 
 
 NEVADA 
 
 There is no special repealing clause in the Nevada 
 Law. 
 
 NEW HAMPSHIRE 
 See 4, in Chapter I, ante, page 27. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 " III, 24. As to constitutionality of any provision. 
 Relation of sections of act. In case for any reason any 
 paragraph or any provision of this act shall be ques- 
 tioned in any court and shall be held to be unconstitu- 
 tional or invalid, the same shall not be held to affect 
 any other paragraph or provision of this act, except
 
 REPEALING ACTS 587 
 
 New Jersey 
 
 that sections I and II are hereby declared to be in- 
 separable, and if either section be declared void or 
 inoperative in an essential part, so that the whole of 
 such section must fall, the other section shall fall 
 with it and not stand alone. Section I of this act 
 shall not apply in cases where section II becomes 
 operative in accordance with the provisions thereof, 
 but shall apply in all other cases, and in such cases 
 shall be in extension of the common law." 
 
 "25. Rights of action in previous cases. Every 
 right of action for negligence, or to recover damages 
 for injuries resulting in death, existing before this act 
 shall take effect, is continued, and nothing in this act 
 contained shall be construed as affecting any such 
 right of action nor shall the failure to give the notice 
 provided for in Section II, paragraph fifteen of this 
 act, be a bar to the maintenance of a suit upon any 
 right or action existing before this act shall take 
 effect." 
 
 The foregoing paragraph (25) seems hardly consistent 
 with the provisions of Section II, paragraph eight, 
 which will be found in Chapter II, ante, page 157. The 
 two provisions have been the subject of much discus- 
 sion. While the point is as yet undetermined by final 
 authority, the better opinion seems to be that if the 
 employer has brought himself within the provisions of 
 the Compensation Act either by presumption or af- 
 firmative action under an agreement, that then the 
 employe's common-law right of action is eliminated. 
 For further discussion of this point see Chapter I, ante, 
 .page 29. 
 
 "3-26. Repealer. All acts or parts of acts in- 
 consistent with the provisions of this act are hereby 
 repealed."
 
 588 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 OHIO 
 
 (L. 1911, c. 000) 
 
 Section 21-1 abolishes the common-law defenses of 
 the employer who does not elect to accept the state 
 insurance plan and then the statute continues as follows : 
 
 "21-2. Willful act of employer. But where a 
 personal injury is suffered by an employe", or when 
 death results to an employe from personal injuries 
 while in the employ of an employer in the course of 
 employment, and such employer has paid into the 
 state insurance fund the premium provided for in this 
 act, and in case such injury has arisen from the 
 willful act of such employer or any of such employer's 
 officers or agents or from the failure of such employer, 
 or any of such employer's officers or agents, to comply 
 with any municipal ordinance or lawful order of any 
 duly authorized officer, or any statute for the protec- 
 tion of the life, or safety of employe's, then in such 
 event, nothing in this act contained shall affect the 
 civil liability of such employer, but such injured em- 
 ploye", or his legal representative, in case death results 
 from the injury, may, at his option, either claim com- 
 pensation under this act or institute proceedings in 
 the courts for his damage on account of such injury, 
 and such employer shall not be liable for any injury 
 to any employe", or to his legal representative, in 
 case death results except as provided in this act. 
 
 Every employe, or legal representative, in case 
 death results, who makes application for an award 
 from the state liability board of awards, waives his 
 right to exercise his option to institute proceedings 
 in any court. Every employe" or his legal representa- 
 tive, in case death results, who exercises his option to
 
 REPEALING ACTS 589 
 
 Washington 
 
 institute proceedings in court as provided in 21-2, 
 waives his right to any award; except as provided in 
 Section 36 of this act. 
 
 See Chapter I, ante, page 32, for comments on the 
 above section. 
 
 RHODE ISLAND 
 
 (L. 1912, c. 000) 
 
 "Art. V, 2. Nothing in this act shall affect the 
 liability of the employer to a fine or penalty under 
 any other statute. 
 
 " 3. The provisions of this act shall not apply to 
 injuries sustained, or accidents which occur, prior to 
 the taking effect hereof. 
 
 " 4. If any section of this act shall be declared un- 
 constitutional or invalid, such unconstitutionality or 
 invalidity shall in no way affect the validity of any 
 other portion thereof which can be given reasonable 
 effect without the part so declared unconstitutional 
 or invalid. 
 
 " 5. In all cases where an employer and employe 
 shall have elected to become subject to the provisions 
 of this act, the provisions of section 14 of Chapter 283 
 of the General Laws shall not apply while this act is 
 in effect. 
 
 "6. All acts and parts of acts inconsistent here- 
 with are hereby repealed. 
 
 " 7. This act may be cited as 'Workmen's Com- 
 pensation Act.' ' 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 "30. Safeguard regulations preserved. Nothing in 
 this act contained shall repeal any existing law pro-
 
 590 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 viding for the installation or maintenance of any de- 
 vice, means or method for the prevention of accidents 
 in extra hazardous work or for a penalty or punish- 
 ment for failure to install or maintain any such pro- 
 tective device, means or method, but sections 8, 9, and 
 10 of the act approved March 6, 1905, entitled: "An 
 act providing for the protection and health of em- 
 ployes in factories, mills or workshops, where ma- 
 chinery is used, and providing for suits to recover 
 damages sustained by the violation thereof, and pre- 
 scribing a punishment for the violation thereof and 
 repealing an act entitled 'An act providing for the 
 protection of employe's in factories, mills, or work- 
 shops where machinery is used, and providing for 
 the punishment of the violation thereof, approved 
 March 6, 1903, ' and repealing all other acts or parts 
 of acts in conflict herewith," are hereby repealed, 
 except as to any cause of action which shall have ac- 
 crued thereunder prior to October 1, 1911. 
 
 "31. Distribution of funds in case of repeal. If 
 this act shall be hereafter repealed, all moneys 
 which are in the accident fund at the time of the 
 repeal shall be subject to such disposition as may be 
 provided by the legislature, and in default of such 
 legislative provision distribution thereof shall be in 
 accordance with the justice of the matter, due regard 
 being had to obligations of compensation incurred 
 and existing. 
 
 " 32. Saving clause. This act shall not affect any 
 action pending or cause of action existing on the 30th 
 day of September, 1911." 
 
 If the employer fails to pay the assessment into the 
 insurance the workman may sue for damages at com- 
 mon law with all common-law defenses eliminated. 
 See 8, reprinted in Chapter I, ante, page 34.
 
 REPEALING ACTS 591 
 
 Washington 
 
 WISCONSIN 
 (L. 1911, c. 50) 
 
 "2394-31. All acts or parts of acts inconsistent 
 with this act are to be deemed replaced by this act, 
 and to that end are hereby repealed. " 
 
 For powers of election to demand damages or com- 
 pensation see Chapter I, ante, page 38.
 
 CHAPTER XXXVIII 
 
 CONSTITUTIONAL DECISIONS ON THE COMPENSATION 
 
 ACTS 
 
 Page Page 
 
 NEW YORK: UNITED STATES SUPREME 
 
 Ives v. South Buffalo Ry. COURT: 
 
 Co 592 SECOND EMPLOYERS' LIA- 
 
 MASSACHUSETTS: BILITY CASES 785 
 
 Opinions of Justices 650 Mondou v. N. Y., N. H. 
 
 WISCONSIN: & H. R. Co 788 
 
 Borgnis v. Folk Co 656 Northern Pac. Ry. Co. v. 
 
 WASHINGTON: Babcock 789 
 
 State ex rel. Davis-Smith New York, N. H. & H. R. 
 
 Co. v. Clausen 703 Co. v. Walsh 790 
 
 OHIO: Walsh v. N. Y., N. H. & 
 
 State ex rel. Yaple v. H.R.Co 790 
 
 Creamer 764 
 
 EARL IVES v. SOUTH BUFFALO RAILWAY COMPANY l 
 (201 N. Y. 271, rev'g 140 App. Div. 921) 
 
 Workmen's compensation law; abolition of common-law de- 
 fenses ; constitutional law ; taking property of employer with- 
 out due process of law 
 
 1. Statutory modification of the "fellow-servant" rule and 
 the law of "contributory negligence" are clearly within 
 
 1 This case has had a profound effect upon subsequent legislation 
 relating to the workmen's compensation principle. As it was held 
 that a mandatory law was unconstitutional the legislatures of the 
 other States have passed "optional," or "elective" statutes in 
 every instance, except in the State of Washington. These other 
 laws provide that employers and employ6s may adopt the com- 
 pensation principle, or not, as they choose. Then they have en- 
 
 592
 
 CONSTITUTIONAL DECISIONS 593 
 
 New York 
 
 the legislative power. These doctrines, for they are noth- 
 ing more, may be regulated or even abolished. This is 
 true to a limited extent as to the assumption of risk by the 
 employe. In the Labor Law and the Employers' Liability 
 Act, which define the risks assumed by the employe", there 
 are many provisions which cast upon the employer a great 
 variety of duties and burdens unknown to the common 
 law. These can doubtless be still further multiplied and 
 extended to the point where they deprive the employer of 
 the rights guaranteed by our constitutions and there they 
 must stop. 
 
 2. Classification for purposes of taxation or regulation under 
 the police power, is a legislative function with which the 
 courts have no right to interfere, unless it is so clearly ar- 
 bitrary or unreasonable as to invade some constitutional 
 
 deavored to force both employer and employe to elect to adopt 
 compensation by penalizing both for their refusal to so elect. The 
 employers who fail to come under the compensation features of the 
 various statutes are penalized by being prohibited from setting up 
 any of the common-law defenses of assumption of risk and negli- 
 gence of fellow servant. The defense of contributory negligence 
 has been abolished also, in whole or in part, as to such employers as 
 refuse to embrace compensation. To induce employe's also to elect 
 to demand "compensation" in place of "damages," it is provided 
 generally in the statutes passed since the Ives case was decided, 
 that when an employer elects to pay compensation and his em- 
 ploye 1 elects to reserve his common-law right of action for damages, 
 that then the employer is free to set up the three common-law de- 
 fenses enumerated above, as against any employe" who brings an 
 action for damages under such a reservation. 
 
 While the legislatures of other States have taken this method of 
 circumventing the doctrine of the Ives case the courts of Massa- 
 chusetts, Ohio, Washington and Wisconsin, as well as the Supreme 
 Court of the United States, have expressed more or less disap- 
 proval of the doctrine announced by the New York Court of Ap- 
 peals. The other decisions to which reference is made above will 
 be found in a subsequent portion of this chapter. 
 38
 
 594 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 right. A State may classify persons and objects for the 
 purpose of legislation, provided the classification is based 
 on proper and justifiable distinctions and for a purpose 
 within the legislative power. 
 
 3. In order to sustain legislation under the police power the 
 courts must be able to see that its operation tends in some 
 degree to prevent some offense or evil, or to preserve pub- 
 lic health, morals, safety and welfare. If it discloses no 
 such purpose, but is clearly calculated to invade the liberty 
 and property of private citizens, it is the duty of the courts 
 to declare it invalid, for legislative assumption of the right 
 to direct the channel into which private energies of the 
 citizen may flow, or legislative attempt to abridge or ham- 
 per the right of the citizen to pursue, unmolested and 
 without unreasonable regulation, any lawful calling or 
 avocation which he may choose, has always been con- 
 demned under our form of government. 
 
 4. A statute which compels an employer to compensate his 
 employe" for injuries without regard to the fault of the em- 
 ploye" takes the property of the employer without due 
 process of law and is therefore repugnant to the Four- 
 teenth Amendment of the Federal Constitution and to 
 similar provisions in the state constitution, nor can it be 
 justified as being within the police power of the State. 
 
 Appeal from a judgment of the Appellate Division 
 of the Supreme Court in the Fourth Judicial Depart- 
 ment, entered October 25, 1910, which affirmed a final 
 judgment in favor of plaintiff entered upon a decision 
 of the court at Special Term sustaining a demurrer to 
 the answer. 
 
 This is an action brought by an employe" against his 
 employer to recover compensation under article 14a 
 of the Labor Law, being Chapter 674 of the Laws of 
 1910, entitled "An act to amend the labor law, in re-
 
 CONSTITUTIONAL DECISIONS 595 
 
 New York 
 
 lation to workmen's compensation in certain dangerous 
 employments." 
 
 The complaint alleges, in substance, that on the 
 second day of April, 1910, while the plaintiff was en- 
 gaged in his work as a switchman on defendant's 
 steam railroad, he was injured solely by reason of a 
 necessary risk or danger of his employment; that at 
 the time of the commencement of the action he had 
 been totally incapacitated for labor for a period of three 
 weeks, and that such incapacity would continue for 
 four weeks longer, and demands judgment for compen- 
 sation in accordance with the provisions of said act 
 for a period of five weeks. The answer, after admit- 
 ting all the allegations of the complaint, pleads as a de- 
 fense the unconstitutionality of article 14a of the Labor 
 Law, upon the ground that it contravenes certain pro- 
 visions of the Federal and state constitutions. The 
 plaintiff demurred to this defense on the ground that 
 it was insufficient in law upon the face thereof. The 
 issue of law thus presented was tried at Special Term, 
 where the demurrer was sustained. Final judgment 
 was entered upon this decision, and the defendant ap- 
 pealed to the Appellate Division, where the judgment 
 was affirmed by a divided court. 
 
 This statute which has been added to the Labor Law 
 is known as article 14a thereof, and consists of twelve 
 sections, which we quote in full. The question pre- 
 sented upon this appeal is whether it is repugnant to 
 any of the provisions of the Federal and state constitu- 
 tions invoked by the defendant.
 
 596 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 " WORKMEN'S COMPENSATION IN CERTAIN DANGEROUS 
 EMPLOYMENTS 
 
 "215. Application of article. This article shall 
 apply only to workmen engaged in manual or mechan- 
 ical labor in the following employments, each of which 
 is hereby determined to be especially dangerous, in 
 which from the nature, conditions or means of prose- 
 cution of the work therein, extraordinary risks to the 
 life and limb of workmen engaged therein are inher- 
 ent, necessary or substantially unavoidable, and as to 
 each of which employments it is deemed necessary to 
 establish a new system of compensation for accidents 
 to* workmen. 
 
 "1. The erection or demolition of any bridge or 
 building in which there is, or in which the plans and 
 specifications require, iron or steel frame work. 
 
 "2. The operation of elevators, elevating machines 
 or derricks or hoisting apparatus used within or on the 
 outside of any bridge or building for the conveying 
 of materials in connection with the erection or demoli- 
 tion of such bridge or building. 
 
 "3. Work on scaffolds of any kind elevated twenty 
 feet or more above the ground, water, or floor beneath 
 in the erection, construction, painting, alteration or 
 repair of buildings, bridges or structures. 
 
 "4. Construction, operation, alteration or repair of 
 wires, cables, switchboards or apparatus charged with 
 electric currents. 
 
 "5. All work necessitating dangerous proximity to 
 gunpowder, blasting powder, dynamite or any other 
 explosives, where the same are used as instrumental- 
 ities of the industry.
 
 CONSTITUTIONAL DECISIONS 597 
 
 New York 
 
 "6. The operation on steam railroads of locomotives, 
 engines, trains, motors or cars propelled by gravity 
 or steam, electricity or other mechanical power, or 
 the construction or repair of steam railroad tracks and 
 roadbeds over which such locomotives, engines, trains, 
 motors or cars are operated. 
 
 "7. The construction of tunneis and subways. 
 
 "8. All work carried on under compressed air. 
 
 "216. Definitions. The words, 'employer,' 'work- 
 man' and 'employment/ or their plurals, used in this 
 article, shall be construed to apply to all the employ- 
 ments above described. 
 
 "217. Basis of liability. If, in the course of any 
 of the employments above described, personal injury 
 by accident arising out of and in the course of the 
 employment after this article takes effect is caused 
 to any workman employed therein, in whole or hi part, 
 or the damage or injury caused thereby is in whole or 
 part contributed to by 
 
 "a. A necessary risk or danger of the employment 
 or one inherent in the nature thereof; or 
 
 "6. Failure of the employer of such workmen or 
 any of his or its officers, agents or employe's to exercise 
 due care, or to comply with any law affecting such em- 
 ployment; then such employer shall, subject- as herein- 
 after mentioned, be liable to pay compensation at the 
 rates set out in section two hundred and nineteen-a 
 of this title; provided that the employer shall not be 
 liable in respect of any injury which does not dis- 
 able the workman for a period of at least two weeks 
 from earning full wages at the work at which he was 
 employed, and provided that the employer shall not 
 be liable in respect of any injury to the workman which
 
 598 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 is caused in whole or in part by the serious and willful 
 misconduct of the workman. 
 
 "218. Rights of action not affected. The right of 
 action for damages caused by any such injury, at com- 
 mon law or under any statute in force on January one, 
 nineteen hundred and ten, shall not be affected by this 
 article, and every existing right of action for negligence 
 or to recover damages for injuries resulting in death 
 is continued, and nothing in this article shall be con- 
 strued as limiting such right of action, but in case the 
 injured workman, or in event of his death his executor 
 or administrator, shall avail himself of this article, 
 either by accepting any compensation hereunder in 
 accordance with section two hundred and nineteen-a 
 hereof, or by beginning proceedings therefor in any 
 manner on account of any such injury, he shall be 
 barred from recovery in and deemed thereby to have 
 released every other action at common law or under 
 any other statute on account of the same injury after 
 this article takes effect. In case after such injury the 
 workman, or in the event of his death his executor or 
 administrator, shall commence any action at common 
 law or under any statute other than this article against 
 the employer therefor he shall be barred from all bene- 
 fit of this article in regard thereto. 
 
 "219. Notice of accident. No proceedings for com- 
 pensation under this article shall be maintained unless 
 notice of the accident as hereinafter provided has been 
 given to the employer as soon as practicable after the 
 happening thereof and before the workman has volun- 
 tarily left the employment in which he was injured, 
 and during such disability, but no want or defect or 
 inaccuracy of a notice shall be a bar to the maintenance
 
 CONSTITUTIONAL DECISIONS 599 
 
 New York 
 
 of proceedings unless the employer proves that he is 
 prejudiced by such want, defect or inaccuracy. Notice 
 of the accident shall state the name and address of the 
 workman injured, the date and place of the accident, 
 and in simple language the physical cause thereof, if 
 known. The notice may be served personally or by 
 sending it by mail in a registered letter addressed to 
 the employer at his last known residence or place of 
 business. 
 
 " 219a. Scale of compensation. The amount of com- 
 pensation shall be in case death results from injury: 
 
 "a. If the workman leaves a widow or next of kin 
 at the time of his death wholly dependent on his earn- 
 ings, a sum equal to twelve hundred times the daily 
 earnings of such workman at the rate at which he was 
 being paid by such employer at the time of the injury 
 subject as hereinafter provided, and in no event more 
 than three thousand dollars. Any weekly payments 
 made under this article shall be deducted in ascer- 
 taining such amount. 
 
 "b. If such widow or next of kin at the time of his 
 death are in part only dependent upon his earnings, 
 such proportionate sum not exceeding that provided 
 in subdivision a as may be determined according to the 
 injury to such dependents. 
 
 "c. If he leaves no dependents, the reasonable ex- 
 penses of his medical attendance and burial, not ex- 
 ceeding one hundred dollars. 
 
 "Whatever sum may be determined to be payable 
 under this article in case of death of the injured work- 
 man shall be paid to his legal representative for the 
 benefit of such dependents, or if he leaves no such 
 dependents, for the benefit of the persons to whom
 
 600 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 the expenses of medical attendance and burial are 
 due. 
 
 "2. Where total or partial incapacity for work at 
 any gainful employment results to the workman from 
 the injury, a weekly payment commencing at the end 
 of the second week after the injury and continuing 
 during such incapacity, subject as herein provided, 
 equal to fifty per centum of his average weekly earnings 
 when at work on full time during the preceding year 
 during which he shall have been in the employment 
 of the same employer, or if he shall have been in the 
 employment of the same employer for less than a year, 
 then a weekly payment of not exceeding three times 
 the average daily earnings on full time for such less 
 period. In fixing the amount of the weekly payment, 
 regard shall be had to the difference between the amount 
 of the average earnings of the workman before the 
 accident and the average amount he is able to earn 
 thereafter as wages in the same employment or other- 
 wise. In fixing the amount of the weekly payment, 
 regard shall be had to any payment, allowance or 
 benefit which the workman may have received from 
 the employer during the period of his incapacity, and 
 in the case of partial incapacity the weekly payment 
 shall in no case exceed the difference between the amount 
 of the average weekly earnings of the workman before 
 the accident and the average weekly amount which he 
 is earning or is able to earn in the same employment 
 or otherwise after the accident, but shall amount to 
 one-half of such difference. In no event shall any com- 
 pensation paid under this article exceed the damage suf- 
 fered, nor shall any weekly payment payable under this 
 article in any event exceed ten dollars a week or extend
 
 CONSTITUTIONAL DECISIONS 601 
 
 New York 
 
 over more than eight years from the date of the acci- 
 dent. 
 
 "2196. Medical examinations. Any workman en- 
 titled to receive weekly payments under this article 
 is required, if requested by the employer, to submit 
 himself for examination by a duly qualified medical 
 practitioner or surgeon provided and paid for by the 
 employer, at a time and place reasonably convenient 
 for the workman, within three weeks after the injury, 
 and thereafter at intervals not oftener than once in 
 six weeks. If the workman refuses to submit to such 
 examination, or obstructs the same, his right to weekly 
 payments shall be suspended until such examination 
 has taken place, and no compensation shall be payable, 
 during or for account of such period. 
 
 "219c. Incompetency of workman. In case an in- 
 jured workman shall be mentally incompetent at the 
 time when any right or privilege accrues to him under 
 this article, a committee or guardian of the incompetent 
 appointed pursuant to law may, on behalf of such 
 incompetent, claim and exercise any such right or 
 privilege with the same force and effect as if the work- 
 man himself had been competent and had claimed 
 or exercised any such right or privilege; and no limita- 
 tion of tune in this article provided for shall run so 
 long as said incompetent workman has no committee 
 or guardian. 
 
 "219d. Settlement of disputes. Any question which 
 may arise under this act shall be determined either by 
 agreement or by arbitration as provided in the Code 
 of Civil Procedure or by an action at law as herein 
 provided. In case the employer fail to make compen- 
 sation as herein provided, the injured workman, or his
 
 602 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 committee or guardian, if such be appointed, or his 
 executor or administrator, may then bring an action 
 to recover compensation under this article in any court 
 having jurisdiction thereof, or in any court which would 
 have had jurisdiction of an action for recovery of dam- 
 ages for negligence for the same injury between the 
 same parties. This article, however, shall not be con- 
 strued as extending the jurisdiction of any such court 
 to award judgment for an amount greater than now 
 allowed by law. Such action shall be conducted in 
 the same manner as actions at law for the recovery 
 of damages for negligence. The judgment in such 
 action if in favor of the plaintiff shall be for a sum 
 equal to the amount of payments then due and prospec- 
 tively due under this article. Such action must be com- 
 menced within six months after the happening of the 
 accident or in case of the death of the workman by 
 such accident within six months after the appointment 
 of his legal representative in this State, or in the event 
 of his physical incapacity, within six months after the 
 removal thereof, or in the event of weekly payments 
 by the employer hereunder, within six months after 
 such payments have ceased. In such an action by 
 an executor or administrator the judgment may provide 
 the proportions of the award or the costs to be distrib- 
 uted to or between the several dependents. If such 
 determination is not made it shall be determined by 
 the Surrogate's Court, in which such executor or ad- 
 ministrator is appointed, in accordance with this article, 
 on petition of any party interested on such notice as 
 such court may direct. 
 
 " 219e. Preferences and exemptions. Any person en- 
 titled to weekly payments under this article against
 
 CONSTITUTIONAL DECISIONS 603 
 
 New York 
 
 any employer shall have the same preferential claim 
 therefor against the assets of the employer as allowed 
 by law for a claim by such person against such em- 
 ployer for unpaid wages or personal services. Weekly 
 payments due under this article shall not be assignable 
 or subject to levy, execution or attachment. 
 
 "219/. Attorneys' liens. No claim of an attorney 
 at law for any contingent interest in any recovery under 
 this article for services in securing such recovery or for 
 disbursements shall be an enforceable lien on such 
 recovery, unless the amount of the same be approved 
 in writing by a justice of the Supreme Court, or in 
 case the same be tried in any court, by the justice 
 presiding at such trial. 
 
 " 2190. Liability of principal contractors. If an em- 
 ployer who shall be the principal enters into a contract 
 with an independent contractor, to do part of such 
 employer's work, or if such contractor enters into a 
 contract with a subcontractor to do all or any part of 
 the work comprised in such contractor's contract with 
 the employer, the said principal shall be liable to pay 
 to any workman employed in the execution of the 
 work any compensation under this article which he 
 would have been liable to pay if that workman had 
 been immediately employed by him; and where com- 
 pensation is claimed from or proceedings are taken 
 against the principal then, in the application of this 
 article, references to the principal shall be substituted 
 for references to the employer, except that the amount 
 of compensation shall be calculated with reference to 
 the earnings of the workman under the contractor or 
 employer by whom he is immediately employed. Where 
 such principal is liable to pay compensation he shall
 
 604 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 be entitled to be indemnified by any person who would 
 have been liable to pay compensation to the workman 
 independently of this section. Nothing in this section 
 shall be construed as preventing a workman from re- 
 covering compensation under this article from the con- 
 tractor or subcontractor, instead of the principal; nor 
 shall this section apply in any case where the accident 
 shall occur elsewhere than on, or in, or about the prem- 
 ises on which the principal has undertaken to execute 
 the work or which are otherwise under his control or 
 management." 
 
 Louis Marshall, Charles B. Sears and Louis L. Bab- 
 cock, for appellant. 
 
 Juhen T. Daises and Harold Harper for New York 
 Dock Company, intervening. 
 
 Thomas C. Burke, for respondent. 
 
 Everett P. Wheeler for Civic Federation, intervening. 
 
 Joseph P. Cotton, Jr., intervening. 
 
 WERNER, J. : 
 
 In 1909 the legislature passed a law (Chapter 518) 
 providing for a commission of fourteen persons, six of 
 whom were to be appointed by the governor, three by 
 the president of the senate from the senate, and five 
 by the speaker of the assembly from the assembly, 
 "to make inquiry, examination and investigation into 
 the working of the law in the State of New York relative 
 to the liability of employers to employes for industrial
 
 CONSTITUTIONAL DECISIONS 605 
 
 New York 
 
 accidents, and into the comparative efficiency, cost, 
 justice, merits and defects of the laws of other indus- 
 trial States and countries, relative to the same subject, 
 and as to the causes of the accidents to employes." 
 The act contained other provisions germane to the 
 subject and provided for a full and final report to the 
 legislature of 1910, if practicable, and if not practicable, 
 then to the legislature of 1911, with such recommenda- 
 tions for legislation by bill or otherwise as the commis- 
 sion might deem wise or expedient. Such a commission 
 was appointed and promptly organized by the election 
 of officers and the appointment of subcommittees, the 
 chairman being Senator Wainwright, from whom it 
 has taken the name of the ''Wainwright Commission," 
 by which it is popularly known. No word of praise 
 could overstate the industry and intelligence of this 
 commission in dealing with a subject of such manifold 
 ramifications and of such far-reaching importance to 
 the State, to employers and to employes. We cannot 
 dwell in detail upon the many excellent features of 
 its comprehensive report, because the limitations of 
 time and space must necessarily confine us to such of 
 its aspects as have a necessary relation to the legal 
 questions which we are called upon to decide. As the 
 result of its labors the commission recommended for 
 adoption the bill which, with slight changes, was en- 
 acted into law by the legislature of 1910, under the 
 designation of article 14a of the Labor Law. This act 
 is modeled upon the English Workmen's Compensation 
 Act of 1897, which has since been extended so as to cover 
 every kind of occupational injury. Our commission 
 has frankly stated in its report that the classification 
 of the industries which will be immediately affected
 
 606 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 by the present statute is only tentative, and that other 
 more extended classifications will probably be rec- 
 ommended to the legislature for its action. 
 
 The statute, judged by our common-law standards, 
 is plainly revolutionary. Its central and controlling 
 feature is that every employer who is engaged in any 
 of the classified industries shall be liable for any injury 
 to a workman arising out of and in the course of the 
 employment by "a necessary risk or danger of the 
 employment or one inherent in the nature thereof; * * * 
 provided that the employer shall not be liable hi respect 
 of any injury to the workman which is caused in whole 
 or in part by the serious and willful misconduct of the 
 workman." This rule of liability, stated in another 
 form, is that the employer is responsible to the employe 1 
 for every accident in the course of the employment, 
 whether the employer is at fault or not, and whether 
 the employe is at fault or not, except when the fault 
 of the employe is so grave as to constitute serious and 
 willful misconduct on his part. The radical character 
 of this legislation is at once revealed by contrasting 
 it with the rule of the common law, under which the 
 employer is liable for injuries to his employe" only when 
 the employer is guilty of some act or acts of negligence 
 which caused the occurrence out of which the injuries 
 arise, and then only when the employe is shown to be 
 free from any negligence which contributes to the oc- 
 currence. The several judicial and statutory modifica- 
 tions of this broad rule of the common law we shall 
 further on have occasion to mention. Just now our 
 purpose is to present in sharp juxtaposition the funda- 
 mentals of these two opposing rules, namely, that under 
 the common law an employer is liable to his injured
 
 CONSTITUTIONAL DECISIONS 607 
 
 New York 
 
 employe only when the employer is at fault and the 
 employe is free from fault ; while under the new statute 
 the employer is liable, although not at fault, even when 
 the employe is at fault, unless this latter fault amounts 
 to serious and willful misconduct. The reasons for 
 this departure from our long-established law and usage 
 are summarized in the language of the commission as 
 follows : 
 
 ''First, that the present system in New York rests 
 on a basis that is economically unwise and unfair, and 
 that in operation it is wasteful, uncertain and productive 
 of antagonism between workmen and employers. 
 
 "Second, that it is satisfactory to none and tolerable 
 only to those employers and workmen who practically 
 disregard their legal rights and obligations, and fairly 
 share the burden of accidents in industries. 
 
 " Third, that the evils of the system are most marked 
 in hazardous employments, where the trade risk is 
 high and serious accidents frequent. 
 
 "Fourth, that, as matter of fact, workmen in the 
 dangerous trades do not, and practically cannot, pro- 
 vide for themselves adequate accident insurance, and, 
 therefore, the burden of serious accidents falls on the 
 workmen least able to bear it, and brings many of them 
 and their families to want." 
 
 This indictment of the old system is followed by a 
 statement of the anticipated benefits under the new 
 statute as follows: " These results can, we think, be 
 best avoided by compelling the employer to share the 
 accident burden in intrinsically dangerous trades, since 
 by fixing the price of his product the shock of the acci- 
 dent may be borne by the community. In those em- 
 ployments which have not so great an element of danger,
 
 608 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 in which, speaking generally, there is no such imperative 
 demand for the exercise of the police power of the State 
 for the safeguarding of its workers from destitution 
 and its consequences, we recommend, as the first step 
 in this change of system, such amendment of the present 
 law as will do away with some of its unfairness in theory 
 and practice, and increase the workman's chance of 
 recovery under the law. With such changes in the 
 law we couple an elective plan of compensation which, 
 if generally adopted, will do away with many of the 
 evils of the present system. Its adoption will, we be- 
 lieve, be profitable to both employer and employe, 
 and prove to be the simplest way for the State to change 
 its system of liability without disturbance of industrial 
 conditions. Not the least of the motives moving us is 
 the hope that by these means a source of antagonism 
 between employer and employed, pregnant with danger 
 for the State, may be eliminated." 
 
 This quoted summary of the report of the commission 
 to the legislature, which clearly and fairly epitomizes 
 what is more fully set forth in the body of the report, 
 is based upon a most voluminous array of statistical 
 tables, extracts from the works of philosophical writers 
 and the industrial laws of many countries, all of which 
 are designed to show that our own system of dealing 
 with industrial accidents is economically, morally and 
 legally unsound. Under our form of government, how- 
 ever, courts must regard all economic, philosophical 
 and moral theories, attractive and desirable though 
 they may be, as subordinate to the primary question 
 whether they can be molded into statutes without 
 infringing upon the letter or spirit of our written con- 
 stitutions. In that respect we are unlike any of the
 
 CONSTITUTIONAL DECISIONS 609 
 
 New York 
 
 countries whose industrial laws are referred to as models 
 for our guidance. Practically all of these countries 
 are so-called constitutional monarchies in which, as 
 in England, there is no written constitution, and the 
 Parliament or lawmaking body is supreme. In our 
 country the Federal and state constitutions are the 
 charters which demark the extent and the limitations 
 of legislative power; and while it is true that the rigidity 
 of a written constitution may at times prove to be 
 a hindrance to the march of progress, yet more often 
 its stability protects the people against the frequent 
 and violent fluctuations of that which, for want of a 
 better name, we call public opinion. 
 
 With these considerations in mind we turn to the 
 purely legal phases Of the controversy for the purpose 
 of disposing of some things which are incidental to 
 the main question. The new statute, as we have ob- 
 served, is totally at variance with the common-law 
 theory of the employer's liability. Fault on his part 
 is no longer an element of the employe's right of 
 action. This change necessarily and logically carries 
 with it the abrogation of the " fellow-servant " doctrine, 
 the " contributory negligence" rule, and the law relat- 
 ing to the employe's assumption of risks. There can 
 be no doubt that the first two of these are subjects 
 clearly and fully within the scope of legislative power; 
 and that as to the third, this power is limited to some 
 extent by constitutional provisions. 
 
 The "fellow-servant" rule is one of judicial origin 
 engrafted upon the common law for the protection of 
 the master against the consequences of negligence in 
 which he has no part. In its early application to simple 
 industrial conditions it had the support of both reason 
 39
 
 610 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 and justice. By degrees it was extended until it be- 
 came evident that under the enormous expansion and 
 infinite complexity of our modern industrial conditions 
 the rule gave opportunity, in many instances, for harsh 
 and technical defenses. In recent years it has been 
 much restricted in its application to large corporate 
 and industrial enterprises, and still more recently it 
 has been modified and, to some extent abolished, by the 
 Labor Law and the Employers' Liability Act. 
 
 The law of contributory negligence has the support 
 of reason in any system of jurisprudence in which the 
 fault of one is the basis of liability for injury to an- 
 other. Under such a system it is at least logical to 
 hold that one who is himself to blame for his injuries 
 should not be permitted to entail the consequences 
 upon another who has not been negligent at all, or 
 whose negligence would not have caused the injury if 
 the one injured had been free from fault. It may be 
 admitted that the reason of the rule is often lost sight 
 of in the effort to apply it to a great variety of practical 
 conditions, and that its efficacy as a rule of justice is 
 much impaired by the lack of uniformity in its ad- 
 ministration. In the admiralty branch of the Federal 
 courts, for instance, we have what is known as the rule 
 of comparative negligence under which, when there is 
 negligence on both sides, it is apportioned and a ver- 
 dict rendered accordingly. In many of the States con- 
 tributory negligence is a defense which must be pleaded 
 and proved by the defendant, and in some States it 
 has been entirely abrogated by statute. In our own 
 State the plaintiff's freedom from contributory negli- 
 gence is an essential part of his cause of action which 
 must be affirmatively established by him, except in
 
 CONSTITUTIONAL DECISIONS 611 
 
 New York 
 
 cases brought by employes under the Labor Law, by 
 virtue of which the contributory negligence of an em- 
 ploye is now made a defense which must be pleaded 
 and proved by the employer; and under the Employers' 
 Liability Act which provides that the employe's con- 
 tinuance in his employment after he has knowledge of 
 dangerous conditions from which injury may ensue, 
 shall not, as matter of law, constitute contributory 
 negligence. 
 
 Under the common law the employe was also held 
 to have assumed the ordinary and obvious risks in- 
 cident to the employment, as well as the special risks 
 arising out of dangerous conditions which were known 
 and appreciated by him. This doctrine, too, has been 
 modified by statute so that under the Labor Law and 
 the Employers' Liability Act the employe" is presumed 
 to have assented to the necessary risks of the occupa- 
 tion or employment and no others; and these necessary 
 risks are defined as those only which are inherent in 
 the nature of the business and exist after the employer 
 has exercised due care in providing for the safety of 
 his employes, and has complied with the laws affecting 
 or regulating the business or occupation for the greater 
 safety of employes. 
 
 We have said enough to show that the statutory 
 modifications of the " fellow-servant " rule and the law 
 of "contributory negligence" are clearly within the 
 legislative power. These doctrines, for they are nothing 
 more, may be regulated or even abolished. This is 
 true to a limited extent as to the assumption of risk 
 1 >y the employe. In the Labor Law and the Employers' 
 Liability Act, which define the risks assumed by the 
 employe, there are many provisions which cast upon
 
 612 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 the employer a great variety of duties and burdens 
 unknown to the common law. These can doubtless 
 be still further multiplied and extended to the point 
 where they deprive the employer of rights guaranteed 
 to him by our constitutions, and there, of course, they 
 must stop, as we shall endeavor to demonstrate later 
 on. 
 
 Passing now to the constitutional objections which 
 are presented against the new statute, we will first 
 eliminate those which we regard as clearly or probably 
 untenable. The appellant argues and the respondent 
 admits that the new statute cannot be upheld under 
 the reserved power of the legislature to alter and amend 
 charters. It is true that the defendant in the case at 
 bar is a railroad corporation, but the act applies to 
 eight enumerated occupations or industries without re- 
 gard to the character of the employers. They may 
 be corporations, firms or individuals. Nowhere in 
 the act is there any reference to corporations. The 
 liability sought to be imposed is based upon the nature 
 of the employment and not upon the legal status of 
 the employer. It is, therefore, unnecessary to decide 
 how far corporate liability may be extended under the 
 reserved power to alter or amend charters, except as 
 that question may be incidentally discussed in consider- 
 ing the police power of the State. 
 
 The appellant contends that the classification in 
 this statute, of a limited number of employments as 
 dangerous, is fanciful or arbitrary and is therefore re- 
 pugnant to that part of the Fourteenth Amendment 
 to the Federal Constitution which guarantees to all 
 our citizens the equal protection of the laws. Classi- 
 fication for purposes of taxation or of regulation under
 
 CONSTITUTIONAL DECISIONS 613 
 
 New York 
 
 the police power, is a legislative function with which 
 the courts have no right to interfere unless it is so 
 clearly arbitrary or unreasonable as to invade some 
 constitutional right. A State may classify persons and 
 objects for the purpose of legislation provided the 
 classification is based on proper and justifiable dis- 
 tinctions (St. John v. New York, 201 U. S. 633 ; Missouri 
 Pac. Ry. Co. v. Mackey, 127 U. S. 205 ; Minneapolis & 
 St. L. Ry. Co. v. Herrick, 127 U. S. 210; Chicago, K. & 
 W. R. R. Co. v. Pontius, 157 U. S. 209), and for a pur- 
 pose within the legislative power. There can be no 
 doubt, we think, that all of the occupations enumerated 
 in the statute are more or less inherently dangerous 
 to a degree which justifies such legislative regulation 
 as is properly within the scope of the police power. 
 We need not look for illustration or authority outside 
 of the Labor Law to which this new statute has been 
 added. The whole of that law which precedes the latest 
 addition is devoted to restrictions and regulations im- 
 posed upon employers in specified occupations or con- 
 ditions for the conservation of the health, safety and 
 morals of employes. These restrictions and regulations 
 do not affect all employers alike in all occupations, 
 nor are they designed to have that effect. The man- 
 date of the Federal Constitution is complied with if 
 all who are in a particular class are treated alike (Mis- 
 souri Pac. Ry. Co. v. Humes, 115 U. S. 512, 523; Barbier 
 v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, 113 
 U. S. 703; Magoun v. III. Trust & Sav. Bank, 170 U. S. 
 283, 294; People ex ret. Hatch v. Reardon, 184 N. Y. 
 431 ; People ex rel. Farrington v. Mcnsching, 187 N. Y. 
 8, 16), and that, we think, is the effect of this classi- 
 fication.
 
 614 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 Another objection urged against the statute is that 
 it violates 2 of article 1 of our state constitution which 
 provides that "The trial by jury in all cases in which 
 it has been heretofore used shall remain inviolate for- 
 ever." This objection is aimed at the provisions of 
 219a and 219d of the statute, which relate to the 
 "scale of compensation" and "settlement of disputes," 
 and has no reference to the fundamental question 
 whether the attempt to impose upon the employer a 
 liability when he is not at fault, constitutes a taking of 
 property without due process of law. In other words, the 
 objection which we are now considering bears solely upon 
 the question whether the two last-mentioned sections 
 of the statute deprive the employer of the right to have 
 a jury fix the amount which he shall pay when his lia- 
 bility to pay has been determined against him. If 
 these provisions relating to compensation are to be 
 construed as definitely fixing the amount which an em- 
 ployer must pay in every case where his liability is estab- 
 lished by the statute, there can be no doubt that they con- 
 stitute a legislative usurpation of one of the functions of 
 a common-law jury. In all cases where there is a right 
 to trial by jury there are two elements which necessarily 
 enter into a verdict for the plaintiff: 1. The right to re- 
 cover. 2. The amount of the recovery. It is as much 
 the right of a defendant to have a jury assess the dam- 
 ages claimed against him as it is to have the question 
 of his liability determined by the same body. East 
 Kingston v. Towle, 48 N. H. 57; Wadsworth v. Union 
 Pacific Ry. Co., 18 Colo. 600; Fairchild v. Rich, 68 Vt. 
 202. This part of the statute, in its present form, has 
 given rise to conflicting views among the members of 
 the court, and since the disposition of the question
 
 CONSTITUTIONAL DECISIONS 615 
 
 New York 
 
 which it suggests is not necessary to the decision of 
 the case, we do not decide it. 
 
 Thus far we have considered only such portions of 
 the statute as we deem to be clearly within the legis- 
 lative power, and one as to which there is difference of 
 opinion. This we have done because we desire to pre- 
 sent no purely technical or hypercritical obstacles to 
 any plan for the beneficent reformation of a branch of 
 our jurisprudence in which, it may be conceded, reform 
 is a consummation devoutly to be wished. In this 
 spirit we have called attention to those features of the 
 new statute which might be upheld as consonant with 
 legislative authority under our constitutional limita- 
 tions, as well as to the sections upon which we are in 
 doubt. We turn now to the two objections which we 
 regard as fatal to its validity. 
 
 This legislation is challenged as void under the Four- 
 teenth Amendment to the Federal Constitution and 
 under 6, article 1 of our state constitution, which 
 guarantee all persons against deprivation of life, liberty 
 or property without due process of law. We shall not 
 stop to dwell at length upon definitions of "life," "lib- 
 erty," "property" and "due process of law." They 
 are simple and comprehensive in themselves and have 
 been so often judicially defined that there can be no 
 misunderstanding as to their meaning. Process of law 
 in its broad sense means law in its regular course of 
 administration through courts of justice, and that is 
 but another way of saying that every man's right to 
 life, liberty and property is to be disposed of in accord- 
 ance with those ancient and fundamental principles 
 which were in existence when our constitutions were 
 adopted. "Due process of law implies the right of
 
 616 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 the person affected thereby to be present before the 
 tribunal which pronounces judgment upon the ques- 
 tion of life, liberty or property in its most comprehen- 
 sive sense; to be heard by testimony or otherwise, and 
 to have the right of controverting by proof every ma- 
 terial fact which bears upon the question of right in 
 the matter involved. If any question of fact or liability 
 be conclusively presumed against him this is not due 
 process of law." Zeigler v. S. & N. Ala. R. R. Co., 
 58 Ala. 594. Liberty has been authoritatively defined 
 as "the right of one to use his faculties in all lawful 
 ways, to live and work where he will, to earn his liveli- 
 hood in any lawful calling, and to pursue any lawful 
 trade or avocation " (Matter of Jacobs, 98 N. Y. 98, 
 106) ; and the right of property as "the right to acquire, 
 possess and enjoy it in any way consistent with the 
 equal rights of others and the just exactions and de- 
 mands of the State." Bertholf v. O'Reilly, 74 N. Y. 
 509, 515. The several industries and occupations 
 enumerated in the statute before us are concededly 
 lawful within any of the numerous definitions which 
 might be referred to, and have always been so. They 
 are, therefore, under the constitutional protection. One 
 of the inalienable rights of every citizen is to hold and 
 enjoy his property until it is taken from him by due 
 process of law. When our constitutions were adopted 
 it was the law of the land that no man who was without 
 fault or negligence could be held liable in damages for 
 injuries sustained by another. That is still the law, 
 except as to the employers enumerated in the new 
 statute, and as to them it provides that they shall be 
 liable to their employes for personal injury by accident 
 to any workman arising out of and in the course of
 
 CONSTITUTIONAL DECISIONS 617 
 
 New York 
 
 the employment which is caused in whole or in part, 
 or is contributed to, by a necessary risk or danger of 
 the employment or one inherent in the nature thereof, 
 except that there shall be no liability in any case where 
 the injury is caused in whole or in part by the serious 
 and willful misconduct of the injured workman. It is 
 conceded that this is a liability unknown to the common 
 law and we think it plainly constitutes a deprivation 
 of liberty and property under the Federal and state 
 constitutions, unless its imposition can be justified 
 under the police power which will be discussed under 
 a separate head. In arriving at this conclusion we do 
 not overlook the cogent economic and sociological argu- 
 ments which are urged in support of the statute. There 
 can be no doubt as to the theory of this law. It is 
 based upon the proposition that the inherent risks of 
 an employment should in justice be placed upon the 
 shoulders of the employer, who can protect himself 
 against loss by insurance and by such an addition to 
 the price of his wares as to cast the burden ultimately 
 upon the consumer; that indemnity to an injured em- 
 ploye should be as much a charge upon the business as 
 the cost of replacing or repairing disabled or defective 
 machinery, appliances or tools; that, under our present 
 system, the loss falls immediately upon the employe 
 who is almost invariably unable to bear it, and ulti- 
 mately upon the community which is taxed for the 
 support of the indigent; and that our present system 
 is uncertain, unscientific and wasteful, and fosters a 
 spirit of antagonism between employer and employe" 
 which it is to the interest of the State to remove. We 
 have already admitted the strength of this appeal to 
 a recognized and widely prevalent sentiment, but we
 
 618 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 think it is an appeal which must be made to the people 
 and not to the courts. The right of property rests not 
 upon philosophical or scientific speculations nor upon 
 the commendable impulses of benevolence or charity, 
 nor yet upon the dictates of natural justice. The right 
 has its foundation in the fundamental law. That can 
 be changed by the people, but not by legislatures. In 
 a government like ours theories of public good or ne- 
 cessity are often so plausible or sound as to command 
 popular approval, but courts are not permitted to 
 forget that the law is the only chart by which the ship 
 of state is to be guided. Law as used in this sense means 
 the basic law and not the very act of legislation which 
 deprives the citizen of his rights, privileges or property. 
 Any other view would lead to the absurdity that the 
 constitutions protect only those rights which the legis- 
 latures do not take away. If such economic and socio- 
 logic arguments as are here advanced in support of this 
 statute can be allowed to subvert the fundamental 
 idea of property, then there is no private right entirely 
 safe, because there is no limitation upon the absolute 
 discretion of legislatures, and the guarantees of the 
 Constitution are a mere waste of words. Wynehamer v. 
 People, 13 N. Y. 378; Taylor v. Porter, 4 Hill, 140, 145; 
 Norman v. Heist, 5 Watts & Serg. 171; Hoke v. Hender- 
 son, 4 Dev. 15. As stated by Judge COMSTOCK in the 
 case of Wynehamer v. People, " These constitutional 
 safeguards, in all cases, require a judicial investigation, 
 not to be governed by a law specially enacted to take 
 away and destroy existing rights, but confined to the 
 question whether, under the pre-existing rule of con- 
 duct, the right in controversy has been lawfully ac- 
 quired and is lawfully possessed" (p. 395). If the
 
 CONSTITUTIONAL DECISIONS 619 
 
 New York 
 
 argument in support of this statute is sound we do not 
 see why it cannot logically be carried much further. 
 Poverty and misfortune from every cause are detri- 
 mental to the State. It would probably conduce to 
 the welfare of all concerned if there could be a more 
 equal distribution of wealth. Many persons have much 
 more property than they can use to advantage and 
 many more find it impossible to get the means for a 
 comfortable existence. If the legislature can say to an 
 employer, "You must compensate your employe" for 
 an injury not caused by you or by your fault," why 
 can it not go further and say to the man of wealth, 
 "You have more property than you need and your 
 neighbor is so poor that he can barely subsist; in the 
 interest of natural justice you must divide with your 
 neighbor so that he and his dependents shall not be- 
 come a charge upon the State?" The argument that 
 the risk to an employe should be borne by the employer 
 because it is inherent in the employment, may be 
 economically sound, but it is at war with the legal 
 principle that no employer can be compelled to assume 
 a risk which is inseparable from the work of the em- 
 ploye, and which may exist in spite of a degree of care 
 by the employer far greater than may be exacted by 
 the most drastic law. If it is competent to impose upon 
 an employer, who has omitted no legal duty and has 
 committed no wrong, a liability based solely upon a 
 legislative fiat that his business is inherently danger- 
 ous, it is equally competent to visit upon him a special 
 tax for the support of hospitals and other charitable 
 institutions, upon the theory that they are devoted 
 largely to the alleviation of ills primarily due to his 
 business. In its final and simple analysis that is taking
 
 620 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 the property of A and giving it to B, and that cannot be 
 done under our constitutions. Practical and simple il- 
 lustrations of the extent to which this theory of liability 
 might be carried could be multiplied ad infinitum, and 
 many will readily occur to the thoughtful reader. There 
 is, of course, in this country no direct legal authority 
 upon the subject of the liability sought to be imposed 
 by this statute, for the theory is not merely new in our 
 system of jurisprudence, but plainly antagonistic to 
 its basic idea. The English authorities are of no assist- 
 ance to us, because in the king's courts the decrees of 
 the Parliament are the supreme law of the land, al- 
 though they are interesting in their disclosures of the 
 paternalism which logically results from a universal 
 employers' liability based solely upon the relation of 
 employer and employe, and not upon fault in the em- 
 ployer. There are a few American cases, however, which 
 clearly state the legal principle which, we think, is 
 applicable to the case at bar, and with a brief reference 
 to them we shall close this branch of the discussion. 
 In the Nitroglycerin case (Parrot v. Wells, Fargo & Co., 
 15 Wall. 524) the plaintiff, who was the common land- 
 lord of the defendants and other tenants, sought to hold 
 the defendants liable for damages occasioned to the 
 premises occupied by the other tenants, by an ex- 
 plosion of nitroglycerin which had been delivered to the 
 defendants as common carriers for shipment. It ap- 
 peared that the defendants were innocently ignorant 
 of the contents of the packages containing the danger- 
 ous explosives, and that they were guilty of no negli- 
 gence in receiving or handling them. Upon these facts 
 the Federal Supreme Court held that it was a case of 
 unavoidable accident for which no one was legally re-
 
 CONSTITUTIONAL DECISIONS 621 
 
 New York 
 
 sponsible. In Ohio & Mississippi Ry. Co. v. Lackey, 
 78 111. 55, the question was whether the railroad com- 
 pany was liable under a statute which provided that 
 "every railroad company running cars within this State 
 shall be liable for all the expense of the coroner and 
 his inquest, and the burial of all persons who may 
 die on the cars, or who may be killed by collision, or 
 other accident occurring to such cars, or otherwise." 
 In speaking of the effect of that section of the law 
 Mr. Justice BREESE observed: "An examination of the 
 section will show that no default, or negligence of any 
 kind, need be established against the railroad company, 
 but they are mulcted in heavy charges if, notwithstand- 
 ing all their care and caution, a death should occur on 
 one of their cars, no matter how caused, even if by the 
 party's own hand. Running of trains by these corpora- 
 tions is lawful and of great public benefit. It is not 
 claimed that the liability attaches for the violation of 
 any law, the omission of any duty or the want of proper 
 care or skill in running their trains. The penalty is 
 not aimed at anything of this kind. We say penalty, 
 for it is in the nature of a penalty, and there is a con- 
 stitutional inhibition against imposing penalties where 
 no law has been violated or duty neglected. Neither 
 is pretended in this case, nor are they in the contempla- 
 tion of the statute. A passenger on a train dies from 
 sickness. He is a man of wealth. Why should his 
 burial expenses be charged to the railroad company? 
 There is neither reason nor justice in it; and if he be 
 poor, having not the means for a decent burial, the 
 general law makes ample provision for such cases." 
 To the same effect are the numerous cases arising 
 under statutes passed by different States imposing upon
 
 622 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 railroad corporations absolute liability for killing or 
 injuring upon their rights of way horses, cattle, etc., 
 by running over them, in which this liability was held 
 to constitute a deprivation of property without due 
 process of law. Jensen v. Union Pacific Ry. Co., 6 
 Utah, 253; Ziegler v. South & North Alabama Ry. Co., 
 58 Ala. 594; Birmingham Ry. Co. v. Parsons, 100 Ala. 
 662; Bielingbery v. Montana Union Ry. Co., 8 Mont. 
 271; Schenk v. Union Pacific Ry. Co., 5 Wyo. 430; Cot- 
 trell v. Union Pacific Ry. Co., 2 Wyo. 540. 
 
 A different interpretation has been given to statutes 
 imposing upon railroad corporations the duty to fence 
 their rights of way, under which the liability is imposed 
 for failure to obey the command of the statutes. Quack- 
 enbush v. Wis. & M. R. R. Co., 62 Wis. 411; Missouri 
 Pac. Ry. Co. v. Humes, 115 U. S. 512; Minneapolis & 
 St. L. Ry. Co. v. Beckwith, 129 U. S. 26. "But even 
 such statutes," says Black in his work on Constitu- 
 tional Law (2d ed., p. 351), "cannot go beyond the im- 
 position of such a penalty in cases where the fault lies 
 at the door of the company. If the law attempts to 
 make such companies liable for accidents which were 
 not caused by their negligence or disobedience of the 
 law, but by the negligence of others or by uncontrollable 
 causes, or does not give the company an opportunity 
 to show these facts in its own defense, it is void." 
 
 We conclude, therefore, that in its basic and vital 
 features the right given to the employe by this statute, 
 does not preserve to the employer the "due process" 
 of law guaranteed by the constitutions, for it authorizes 
 the taking of the employer's property without his con- 
 sent and without his fault. So far as the statute merely 
 creates a new remedy in addition to those which existed
 
 CONSTITUTIONAL DECISIONS 623 
 
 New York 
 
 before it is not invalid. The State has complete control 
 over the remedies which it offers to suitors in its courts 
 even to the point of making them applicable to rights 
 or equities already in existence. It may change the 
 common law and the statutes so as to create duties and 
 liabilities which never existed before. It is true, as 
 stated by Mr. Justice BROWN in H olden v. Hardy, 169 
 U. S. 366, 385, 386, that "the law is, to a certain extent, 
 a progressive science; that in some of the States methods 
 of procedure, which at the tune the Constitution was 
 adopted were deemed essential to the protection and 
 safety of the people, or to the liberty of the citizen, 
 have been found to be no longer necessary; that re- 
 strictions which had formerly been laid upon the con- 
 duct of individuals, or of classes of individuals, had 
 proved detrimental to their interests; while, upon the 
 other hand, certain other classes of persons, particularly 
 those engaged in dangerous or unhealthful employ- 
 ments, have been found to be in need of additional 
 protection. Even before the adoption of the Consti- 
 tution, much had been done toward mitigating the 
 severity of the common law, particularly in the ad- 
 ministration of its criminal branch. * * * The present 
 century has originated legal reforms of no less impor- 
 tance. The whole fabric of special pleading, once 
 thought to be necessary to the illumination of the real 
 issue between the parties, has crumbled to pieces. The 
 ancient tenures of real estate have been largely swept 
 away, and land is now transferred almost as easily and 
 cheaply as personal property. Married women have 
 been emancipated from the control of their husbands 
 and placed upon a practical equality with them with 
 respect to the acquisition, possession and transmission
 
 624 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 of property. Imprisonment for debt has been abolished. 
 Exemptions from execution have been largely added to, 
 and in most of the States homesteads are rendered 
 incapable of seizure and sale upon forced process. Wit- 
 nesses are no longer incompetent by reason of interest, 
 even though they be parties to the litigation. Indict- 
 ments have been simplified, and an indictment for the 
 most serious of crimes is now the simplest of all. In 
 several of the States grand juries, formerly the only 
 safeguard against a malicious prosecution, have been 
 largely abolished, and in others the rule of unanimity, 
 so far as applied to civil cases, has given way to verdicts 
 rendered by a three-fourths majority." The power of 
 the State to make such changes in methods of procedure 
 and in substantive law is clearly recognized. Hurtado 
 v. California, 110 U. S. 516; Hayes v. Missouri, 120 
 U. S. 68; Missouri Pac. Railway Co. v. Mackey, 127 
 U. S. 205; Hallinger v. Dams, 146 U. S. 314; Matter of 
 Kemmler, 136 U. S. 436; Duncan v. Missouri, 152 U. S. 
 377. We repeat, however, that this power must be 
 exercised within the constitutional limitations which 
 prescribe the law of the land. "Due process of law" 
 is process due according to the law of the land, and the 
 phrase as used in the Fourteenth Amendment of the 
 Federal Constitution with reference to the power of 
 the States means the general law of the several States 
 as fixed or guaranteed by their constitutions. As stated 
 by Mr. Webster, in the Dartmouth College case, "The 
 law of the land is the general law; the law which hears 
 before it condemns, which proceeds upon inquiry and 
 renders judgment only after trial." 
 
 If we are warranted in concluding that the new stat- 
 ute violates private right by taking the property of one
 
 CONSTITUTIONAL DECISIONS 625 
 
 and giving it to another without due process of law, 
 that is really the end of this case. But the auspices 
 under which this legislation was enacted, no less than 
 its intrinsic importance, entitle its advocates to the 
 fullest consideration of every argument in its support, 
 and we, therefore, take up the discussion of the police 
 power under which this law is sought to be justified. 
 The police power is, of course, one of the necessary 
 attributes of civilized government. In its most com- 
 prehensive sense it embraces the whole system by which 
 the State seeks to preserve the public order, to prevent 
 offenses against the law, to insure to citizens in their 
 intercourse with each other the enjoyment of their own 
 so far as is reasonably consistent with a like enjoy- 
 ment of rights by others. Under it persons and prop- 
 erty are subjected to all kinds of restraints and burdens 
 in order to secure the general comfort, health and pros- 
 perity of the State. But it is a power which is always 
 subject to the Constitution, for in a constitutional 
 government limitation is the abiding principle, ex- 
 hibited in its highest form in the Constitution as the 
 deliberative judgment of the people, which moderates 
 every claim of right and controls every use of power. 
 In the language of Chief Justice SHAW, in Common- 
 wealth v. Alger, 7 Cush. 85: "It is much easier to per- 
 ceive and realize the existence and sources of this power 
 than to mark its boundaries or prescribe limits to its 
 exercise." It covers a multitude of things, that are de- 
 signed to protect life, limb, health, comfort, peace and 
 property according to the maxim sic utere tuo ut alienum 
 non Icedas, but its exercise is justified only when it 
 appears that the interests of the public generally, as 
 distinguished from those of a particular class, require 
 40
 
 626 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 it, and when the means used are reasonably necessary 
 for the accomplishment of the desired end, and are 
 not unduly oppressive. Lawton v. Steele, 152 U. S. 133, 
 137; Colon v. Lisk, 153 N. Y. 188, 196; Wright v. Hart, 
 182 N. Y. 330. In order to sustain legislation under 
 the police power the courts must be able to see that 
 its operation tends in some degree to prevent some 
 offense or evil, or to preserve public health, morals, 
 safety and welfare. If it discloses no such purpose, 
 but is clearly calculated to invade the liberty and prop- 
 erty of private citizens, it is plainly the duty of the 
 courts to declare it invalid, for legislative assumption 
 of the right to direct the channel into which the private 
 energies of the citizen may flow, or legislative attempt 
 to abridge or hamper the right of the citizen to pursue, 
 unmolested and without unreasonable regulation, any 
 lawful calling or avocation which he may choose, has 
 always been condemned under our form of government. 
 Concrete illustrations of what may and what may not 
 be done under the police power are to be found in this 
 very Labor Law of which the new statute is a part. 
 As this statute stood before article 14a was added, it 
 regulated electric work, the operation of elevators, 
 work on scaffolds, work with explosives and compressed 
 air, the construction of tunnels and railroad work. It 
 regulated the hours of work in certain employments; 
 it directed the payment of wages in cash at specified 
 periods; it provided for the protection of employes 
 engaged in the erection of buildings; it compelled the 
 employer to guard dangerous and exposed machinery 
 and to construct fire escapes and ventilating appliances; 
 it required him to provide toilet facilities, pure drinking 
 water and sanitary arrangements and prohibited the
 
 CONSTITUTIONAL DECISIONS 627 
 
 New York 
 
 employment of women, and of children under certain 
 ages, in specified occupations; it regulated the hours 
 of labor of minors; it modified the fellow-servant rule, 
 the law of contributory negligence and the assumption 
 of risks; and, in short, it imposed upon the employer 
 many restrictions and duties which were unknown to 
 the common law. Broadly classified, all these and 
 similar statutory provisions which are designed, in one 
 way or another, to conserve the health, safety or morals 
 of the employes and to increase the duties and respon- 
 sibilities of the employer, are rules of conduct which 
 properly fall within the sphere of the police power. 
 Holden v. Hardy, 169 U. S. 366; Missouri Pac. Ry. Co. v. 
 Mackcij, 127 U. S. 205. But the new addition to the 
 Labor Law is of quite a different character. It does 
 nothing to conserve the health, safety or morals of the 
 employes, and it imposes upon the employer no new or 
 affirmative duties or responsibilities in the conduct of 
 his business. Its sole purpose is to make him liable 
 for injuries which may be sustained wholly without 
 his fault, and solely through the fault of the employe", 
 except where the latter fault is such as to constitute 
 serious and willful misconduct. Under this law, the 
 most thoughtful and careful employer, who has neg- 
 lected no duty, and whose workshop is equipped with 
 every possible appliance that may make for the safety, 
 health and morals of his employes, is liable in damages 
 to any employe who happens to sustain injury through 
 an accident which no human being can foresee or pre- 
 vent, or which, if preventable at all, can only be pre- 
 vented by the reasonable care of the employe" himself. 
 That this is the unmistakable theory and purpose of 
 the act is made perfectly plain by the recital in 215,
 
 628 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 which sets forth that from the nature, conditions or 
 means of prosecution of the work in the employments 
 which are classified as dangerous, "extraordinary risks 
 to the life and limb of workmen engaged therein are 
 inherent, necessary or substantially unavoidable, and 
 as to each of which employments it is deemed necessary 
 to establish a new system of compensation for accidents 
 to workmen." And to make the matter still more 
 plain, the learned counsel for the commission argues 
 in his brief that "if it is competent for the legislature 
 to say to the employer in a dangerous trade, 'use the 
 utmost care in giving your workmen safe work, so 
 that no act of yours, or implement of yours, or work 
 that you set them to do shall hurt them, and if you fail 
 you shall be liable in damages,' if it is competent to 
 make such a law, then it is equally competent to say 
 as in this new act directly, 'you shall be responsible 
 for all damages caused by unsafe condition of work,' 
 and that is just what the liability for trade risks under 
 the new act means." In this argument the learned 
 counsel ignores, or at least misses, as we think, the vital 
 distinction between legislation which imposes upon an 
 employer a legal duty, for the failure to perform which 
 he may be penalized or rendered liable in damages, 
 and legislation which makes him liable notwithstanding 
 he has faithfully observed every duty imposed upon 
 him by law. At pages 46 and 47 of the report of the 
 commissioners are quoted the several pertinent provi- 
 sions of our state constitution. Article 1, 18; article 1, 
 2; article 1, 1; article 1, 6. With reference to 
 these, the commissioners say: "It is obvious, on a mere 
 reading, that the first section makes it impossible for 
 the legislature to enact any law which will take away
 
 CONSTITUTIONAL DECISIONS 629 
 
 New York 
 
 from the representatives of an injured workman the 
 right of action there named for injuries causing death, 
 nor can the legislature limit it in any way. It is equally 
 obvious, it seems to us, that it was the intention of 
 the second section of the Constitution (article 1, 2), 
 to provide that in all controversies in the courts of 
 law either side should finally have a right to a jury trial 
 on the question of liability, and however successful or 
 unsuccessful jury trials may be in cases of employers' 
 liability, or in other cases, that solemn mandate of the 
 Constitution cannot be set aside. The third and fourth 
 sections of the Constitution above quoted are practically 
 those which, like the Fourteenth Amendment of the 
 Federal Constitution, provide for due process of law 
 in all legislation, that is, speaking generally, which 
 prohibit the passage by the legislature of such legisla- 
 tion as shall arbitrarily deprive any of the citizens of 
 the State of life, liberty or property." 
 
 These are interesting and salient admissions, but the 
 ease with which these constitutional provisions are 
 brushed aside is startling. Continuing, the commis- 
 sioners say: ''But we regard it as settled that the legis- 
 lature has power, if it so chooses, to change or abrogate 
 the common law on employers' liability, or the Em- 
 ployers' Liability Act, or any other statutes in regard 
 thereto. * * * The legislature of this State, in the 
 exercise of its general powers, * * * has in the past 
 so legislated as to prescribe that employers in New York 
 industries, shall conduct their business, use their ma- 
 chines and use their property in such ways as shall 
 conduce to the safety of the employes and the preven- 
 tion of accident and disease. Such is the whole purpose 
 of the Labor Law. * * * We are of opinion that it is
 
 630 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 competent for the legislature to take a further step and 
 provide conditions of the carrying on of such dangerous 
 industries not at the moment conditions as to the 
 method of carrying them on but conditions providing 
 that any man in the State who carries on such dangerous 
 trades shall be liable to make compensation to the 
 employe's injured either by the fault of the employer, 
 or by those unavoidable risks of the employment. The 
 effect of such a statute would be to reverse the com- 
 mon law doctrine that the employe" assumes the risk 
 of his employment." 
 
 With all due respect to the members of the commis- 
 sion we beg to observe that the statute enacted in 
 conformity with their recommendations, does not stop 
 at reversing the common law; it attempts to reverse 
 the very provisions of the Constitution which, the 
 commissioners admit, are obviously beyond the reach 
 of the legislature. We cannot understand by what 
 power the legislature can take away from the employer 
 a constitutional guaranty of which the employe" may 
 not also be deprived. If it is beyond the power of the 
 legislature to take from the representatives of deceased 
 employe's their rights of action under the Constitution, 
 by what measure of power or justice may the legislature 
 assume to take from the employer the right to have his 
 liability determined in an action at law? Conceding, 
 as we do, that it is within the range of proper legislative 
 action to give a workman two remedies for a wrong 
 when he had but one before, we ask, by what stretch 
 of the police power is the legislature authorized to give 
 a remedy for no wrong? If, before the passage of this 
 law, the employer had a right to a jury trial upon the 
 question of liability, where and how did he lose it?
 
 CONSTITUTIONAL DECISIONS 631 
 
 New York 
 
 Can it be taken from him by the mere assertion that 
 this statute only reverses the common-law doctrine 
 that the employe assumes the risk of his employ- 
 ment? It would be quite as logical and effective to 
 argue that this legislation only reverses the laws of 
 nature, for in everything within the sphere of human 
 activity the risks which are inherent and unavoidable 
 must fall upon those who are exposed to them. We 
 must admit that what the legislature may prohibit it 
 may absolutely control. Where the right to exist, as 
 in case of corporations, depends upon the will of the 
 legislature, that right may be granted subject to pre- 
 scribed conditions. In such a case an employer may 
 be made an insurer of the safety of his employes as a 
 condition of the permission to engage in business. But 
 when an industry or calling is per se lawful and open 
 to all, and, therefore, beyond the prohibitive power 
 of the legislature, the right of governmental control 
 must be confined to such reasonable enactments as 
 are directly designed to conserve health, safety, com- 
 fort, morals, peace and order. Lochner v. New York, 
 198 U. S. 45. For the failure of an employer to observe 
 such regulations the legislature may unquestionably 
 enact direct penalties or create presumptions of fault 
 which, if not rebutted by proof, may be regarded as 
 sufficient evidence of liability for damages. That must 
 be the extreme limit of the police power, for just beyond 
 is the Constitution which, in substance and effect, 
 forbids that a citizen shall be penalized or subjected 
 to liability unless he has violated some law or has been 
 guilty of some fault. 
 
 The limitations of the police power are illustrated 
 in a great variety of cases. In Matter of Jacobs, 98
 
 632 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 N. Y. 98, 99, it was held that an act was void which 
 made it a misdemeanor to manufacture cigars or pre- 
 pare tobacco in certain tenements. In People v. Marx, 
 99 N. Y. 377, this court condemned an act absolutely 
 prohibiting the manufacture or sale of oleomargarine, 
 upon the ground that it interfered with a lawful in- 
 dustry, not injurious to the public and not fraudulently 
 conducted, although in a later case (People v. Ar ens- 
 berg, 105 N. Y. 123), another statute relating to the same 
 subject was upheld because it was directly aimed at 
 a designed and intentional imitation of dairy butter. 
 In People v. Gillson, 109 N. Y. 389, 404, it was held 
 that a statute was not within the police power which 
 prohibited the sale or disposal of any article of food upon 
 any representation or inducement that anything else 
 will be delivered as a gift, prize, premium or reward 
 to the purchaser. The ground of the decision was 
 that it was not a health law; that it was not designed 
 to prevent the adulteration of food, and that it was 
 not in the power of the legislature to convert an inno- 
 cent act into a crime. In Colon v. Lisk, 153 N. Y. 188, 
 the statute under consideration provided for the sum- 
 mary seizure of any boat or vessel, used by one person 
 in interfering with the oysters or shell fish of another, 
 and for its forfeiture and sale. It was held that the 
 statute sanctioned an unauthorized confiscation of pri- 
 vate property for the mere protection of private rights 
 and was not within the police power of the State. 
 In People v. Hawkins, 157 N. Y. 1, this court decided 
 that a statute was void which made it a misdemeanor 
 to sell or expose for sale any goods made in a penal 
 institution unless they were labeled " convict made." 
 In People v. Orange County Road Con. Co., 175 N. Y. 84,
 
 CONSTITUTIONAL DECISIONS 633 
 
 New York 
 
 it was held that the State cannot dictate to independent 
 contractors on state work the hours of labor which they 
 shall prescribe for their employes, where there was 
 nothing in the character of the work or in the provisions 
 of the contract to justify legislative interference. In 
 Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230, 
 what is known as the "Mileage Book Act," which re- 
 quired railroad companies to issue mileage books and 
 provided a penalty for refusal, was unconstitutional 
 as to railroad corporations in existence at the time of 
 its enactment, because it was an illegal invasion of the 
 vested property rights of such corporations. In Schnaier 
 v. Navarre Hotel & 7. Co., 182 N. Y. 88, the court pro- 
 nounced invalid a statute which provided that it should 
 be unlawful for a copartnership to engage in the busi- 
 ness of "employing" or master plumber unless each 
 and every member thereof shall have registered, after 
 examination and certification by an examining board 
 of plumbers. In People v. Marcus, 185 N. Y. 257, it 
 was held that a section of the Penal Code was void 
 which provided, in substance, that no person shall 
 make the employment of another, or the continuance 
 of such employment, conditional upon the employe's 
 not joining or becoming a member of a labor organiza- 
 tion. In People v. Williams, 189 N. Y. 131, 134, this 
 court condemned that part of the Labor Law which 
 prohibited the employment of an adult female in a 
 factory before six o'clock in the morning or after nine 
 o'clock in the evening, and held that it was not a proper 
 exercise of the police power, since it had no reference 
 to the number of hours of labor or to the healthfulness 
 of the employment. 
 
 We have yet to consider certain special cases upon
 
 634 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 which the exponents of this new law have planted their 
 faith and hope, and these run along such divergent lines 
 as to indicate, more clearly than anything else, the 
 absence of any sound legal theory upon which this 
 legislation can be sustained. These cases are cited in 
 support of the contention that the common law and 
 our statutes furnish many illustrations of legal liability 
 without fault, but we shall endeavor by analysis to 
 show how inapplicable they are to the questions now 
 before the court. The case of Marvin v. Trout, 199 
 U. S. 212, arose under an Ohio statute which subjected 
 premises used for gambling to a lien for money lost in 
 gambling. The statute forbade gambling, and the 
 court very properly argued that: "The power of the 
 State to enact laws to suppress gambling, cannot be 
 doubted, and, as a means to that end, we have no doubt 
 of its power to provide that the owner of the building 
 in which gambling is conducted, who knowingly looks 
 on and permits such gambling, can be made liable in 
 his property which is thus used, to pay a judgment 
 against those who won the money, as is provided in 
 the statute. * * * The liability of the owner of the 
 building to make good the loss sustained, under the 
 circumstances set forth in the statute, was clearly part 
 of the means resorted to by the legislature for the pur- 
 pose of suppressing the evil in the interests of the public 
 morals and welfare" (p. 224). A more cogent illustra- 
 tion of the undoubted application of the police power 
 cannot be found. In the interest of good morals it is 
 not merely the right but the duty of the State to sup- 
 press gambling, and the case, so far from being an 
 authority for the idea of liability without fault, pro- 
 ceeds directly upon the theory that the owner was at
 
 CONSTITUTIONAL DECISIONS 635 
 
 New York 
 
 fault in permitting his premises to be used for an illegal 
 purpose. Then there is the case of Bertholf v. O'Reilly, 
 74 N. Y. 509, in which this court upheld the so-called 
 "Civil Damage Act" which gave to every husband, 
 wife, parent, guardian, employer or other person who 
 should be injured in person or property or means of 
 support by any intoxication of any person, a right of 
 action against any person who by selling or giving away 
 intoxicating liquors caused the intoxication, in whole 
 or in part, and subjecting to the same liability any 
 person or persons owning or renting or permitting the 
 occupation of any building or premises with knowledge 
 that intoxicating liquors were to be sold thereon. In 
 that case, as in the case of Marvin v. Trout (supra), 
 the controlling principle was that the State had the 
 right to prohibit and, therefore, the absolute right to 
 control. As Judge ANDREWS pertinently observed, 
 "The right of the State to regulate the traffic in intoxi- 
 cating liquors, within its limits, has been exercised from 
 the foundation of the government, and is not open to 
 question. The State may prescribe the persons by 
 whom and the conditions under which the traffic may 
 be carried on. It may impose upon those who act 
 under its license such liabilities and penalties as in its 
 judgment are proper to secure society against the dan- 
 gers of the traffic and individuals against injuries com- 
 mitted by intoxicated persons under the influence of 
 or resulting from their intoxication" (p. 517). The 
 defendant in that case, it is true, was not the licensee, 
 but he had rented his premises for the traffic in intoxi- 
 cating liquors knowing that they were to be so used. 
 Upon that feature of the case Judge ANDREWS said: 
 "The liability imposed upon the landlord for the acts
 
 636 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 of the tenant is not a new principle in legislation. His 
 liability only arises when he has consented that the 
 premises may be used as a place for the sale of liquors. 
 He selects the tenant, and he may, without violating 
 any constitutional provision, be made responsible for 
 the tenant's acts connected with the use of the leased 
 property" (p. 525). That is very far from being a case 
 of liability without fault. The enactment of the "Civil 
 Damage Act" was clearly within the police power, and 
 the liability imposed did not deprive either the tenant 
 or the landlord of "due process of law," for each had 
 the right to his day in court and an opportunity to dis- 
 prove the facts upon which the statutory right of ac- 
 tion depended. Let us suppose, however, that the 
 statute had gone so far as to provide that the mere fact 
 of selling liquor by the tenant, or the mere fact of rent- 
 ing the premises for that purpose by the landlord, 
 should be deemed conclusive proof of the intoxication 
 of the person to whom the liquor was sold, and of the 
 fact that the person bringing the suit had suffered injury 
 thereby, so that the person sued could not be heard to 
 deny or disprove his responsibility for the intoxication 
 or the injuries resulting therefrom. Would that be 
 "due process of law"? Suppose that the Ohio statute, 
 which was also clearly within the general scope of the 
 police power, had imposed upon the landlord a liability 
 for money lost in gambling on his premises without 
 his knowledge of the purpose for which the building was 
 used, and had declared that evidence of the mere loss 
 of the money should be sufficient to sustain a judgment 
 against him. That would clearly be a case of liability 
 without fault; but what court, controlled by constitu- 
 tional limitations, would render such a judgment? We
 
 CONSTITUTIONAL DECISIONS 637 
 
 New York 
 
 are referred to the case of Chicago, Rock Island & Pacific 
 Railway Co. v. Zernecke, 183 U. S. 582, as an illustration 
 of liability without fault. We think that case has no 
 analogy to the case at bar. There a statute of Nebraska 
 imposed upon railroad corporations a liability for all 
 injuries to passengers except when occasioned by the 
 criminal negligence of the person injured, or when the 
 injury was sustained in the violation of some express 
 rule or regulation of the corporation. The point de- 
 cided in that case was that this rule of liability was a 
 part of the very statute under which the corporation 
 took its charter. The defendant in the case at bar is 
 a railroad corporation, and as such may be subject to 
 state regulations which would not apply to other cor- 
 porations or to individuals, but we are not now con- 
 cerned with that question, since the statute before us 
 has reference to employers in their relations with their 
 employes, and not to railroads in their service to the 
 public. 
 
 In support of this new statute we are also asked to 
 consider the supposed analogies of the law of deodands; 
 the common-law liability of the husband for the torts 
 of his wife; the liability of the master for the acts of 
 his servant, and the liability of a ship for the care and 
 maintenance of sick or disabled seamen. From the 
 historical point of view, these subjects might be very 
 entertainingly elaborated, but for the practical purposes 
 of this discussion they may be very briefly disposed 
 of. If the law of deodands was ever imported into 
 this country it has never, to our knowledge, found ex- 
 pression in a single statute or judicial decision. It 
 was one of those primitive conceptions of justice under 
 which a chattel which caused the death of a human
 
 638 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 being was forfeited to the king. We are unable to see 
 what bearing it can have upon the question whether, 
 under our constitutions, it is due process of law to render 
 a man liable for damages when he has been guilty of 
 no fault. Quite as farfetched seems the argument based 
 upon the common-law liability of the husband for the 
 torts of his wife. Under the common-law unity of 
 husband and wife, the latter was presumed to act under 
 the compulsion of the former; and the wife could never 
 be sued alone. As the marriage vested the husband 
 with the personal property of the wife, it was simply 
 logical that he should pay her obligations. So with the 
 liability of the master for the acts of his servant, the 
 whole theory is expressed in the maxim qui facit per 
 alium facit per se. He who acts through another acts 
 himself. How do these illustrations support the prin- 
 ciple of liability without fault? Could a husband or 
 master be held liable under the common law when the 
 wife or servant had been guilty of no wrong? Would 
 the common law have denied to the husband or master 
 the right to prove that no tort had been committed 
 by the wife or servant? The admiralty cases of The 
 Osceola, 189 U. S. 158; The City of Alexandria, 17 Fed. 
 Rep. 399, and the case of Scarff v. Metcalf, 107 N. Y. 
 211, seem to us equally inapplicable as authorities for 
 the proposition that the law recognizes liability with- 
 out fault. It is common knowledge that the contracts 
 and services of seamen are exceptional in character. 
 A seaman engages for the voyage. He is subject to 
 physical discipline, and exposed to hardships and dan- 
 gers peculiar to the sea. He is, in effect, a coadventurer 
 with the master, and shares in the risks of shipwreck 
 and capture, often losing his wages by casualties which
 
 CONSTITUTIONAL DECISIONS 639 
 
 New York 
 
 do not affect workmen on land. For these and many 
 other obvious reasons the maritime law has wisely and 
 benevolently built up peculiar rights and privileges 
 for the protection of the seaman which are not cogni- 
 zable in the common law. When he is sick or injured 
 he is entitled to be cared for at the expense of the ship, 
 and for the failure of the master to perform his duty 
 in this regard, the ship or the owner is liable. That is 
 a right given to the- seaman, and a duty enjoined upon 
 the master, by the plainest dictates of justice, which 
 arises out of the necessities of the case; and, because 
 of the reason of the rule, the right and duty cease when 
 the contract has terminated and the seaman has been 
 returned to the port of shipment or discharge, or has 
 been furnished with means to do so. But beyond this 
 duty on the part of the master or owner, there seems 
 to be no liability whatever for injuries sustained by 
 the seaman in the course of his work. We think it 
 may confidently be asserted that within the whole 
 range of the maritime law there will be found no rule 
 which renders master, owner or ship liable in damages 
 for an injury sustained by the seaman without fault 
 on the part of anyone, or without any fault except his 
 own. The case of Scarff v. Metcalf, 107 N. Y. 211, was 
 not disposed of upon any such theory, but was based 
 upon the neglect of the master to perform the duty of 
 caring for the injured seaman imposed by the maritime 
 law. The legal status of seamen is clearly illustrated 
 in the case of Robertson v. Baldwin, 165 U. S. 275, where 
 it was held that compulsory personal service of a sea- 
 man in performance of his contract was not a violation 
 of the Thirteenth Amendment to the Federal Consti- 
 tution forbidding slavery or involuntary servitude.
 
 640 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 In that case the learned justice who wrote for the court 
 suggested that enforced service under a seaman's con- 
 tract was not involuntary within the Constitution, 
 although the contract would not be enforced by the 
 courts. But in the later case of Clyatt v. United States, 
 197 U. S. 207, it was held that peonage or enforced 
 service, whether under a voluntary contract of service 
 or not, was involuntary servitude and forbidden by 
 the Constitution in all cases save .those arising out of 
 the exceptional relations of the seaman to his ship, 
 the child to its parents and the apprentice to his mas- 
 ter. In the review in Robertson v. Baldwin (supra), of 
 the various decisions in admiralty, it is made quite 
 clear that the courts have always regarded seamen as 
 irresponsible to a degree which makes them incapable 
 of fully protecting their own rights. With the power 
 given to the employer of seamen to compel specific per- 
 formance of their contracts, there are imposed certain 
 obligations unknown to any other relation. It is a 
 relation which rests on affirmative law and not on nat- 
 ural right. We can find no analogy between a case 
 arising out of such a relation and one in which an adult 
 of sound mind and capable of freely contracting for 
 himself voluntarily enters upon employment from which 
 he is at liberty to withdraw whenever he will. 
 
 Great reliance is placed upon the case of St. Louis & 
 San Francisco Ry. Co. v. Mathews, 165 U. S. 1, in sup- 
 port of the contention that there may be liability where 
 there is no delinquency. That was an action brought 
 by an owner of land adjoining the defendant's railroad 
 to recover damages for the destruction of his dwelling 
 house and other buildings, caused by fire which spread 
 from sparks emitted by the defendant's locomotives.
 
 CONSTITUTIONAL DECISIONS 641 
 
 New York 
 
 The action was brought under a statute of the State 
 of Missouri which provided that "each railroad cor- 
 poration, owning or operating a railroad in this State, 
 shall be responsible in damages to every person and 
 corporation whose property may be injured or de- 
 stroyed by fire communicated, directly or indirectly, by 
 locomotive engines in use upon the railroad owned or 
 operated by such railroad corporation; and each such 
 railroad corporation shall have an insurable interest 
 in the property upon the route of the railroad ow r ned or 
 operated by it, and may procure insurance thereon in 
 its own behalf, for its protection against such damages." 
 The statute was upheld as being within the legislative 
 power of the State. That decision is amply supported 
 by a number of reasons which have no application to the 
 controversy at bar. To begin with, the constitution 
 of Missouri contained a clause, which was in force when 
 the railroad company obtained its charter, providing 
 that "the exercise of the police power of the State shall 
 never be abridged, or so construed as to permit cor- 
 porations to conduct their business in such manner as 
 to infringe the equal rights of individuals, or the general 
 well-being of the State." Missouri Const., article 12, 
 5. Another ample reason is found in the fact that 
 railroads alone "have the privilege of taking a narrow 
 strip of land from each owner, without his consent, 
 along the route selected for the track, and of traversing 
 the same at all hours of the day and night, and at all 
 seasons whether wet or dry, with locomotive engines 
 that scatter fire along the margin of the land not taken, 
 thereby subjecting all combustible property to extraor- 
 dinary hazard of loss." Grissell v. Housatonic R. R. 
 Co., 54 Conn. 447. Then, again, "the right to use the 
 41
 
 New York 
 
 agencies of fire and steam in the movement of railway 
 trains is * * * derived from the legislation of the 
 State, and it certainly cannot be denied that it is for 
 the State to determine what safeguards must be used 
 to prevent the escape of fire, and to define the extent 
 of the liability for fires resulting from the operation 
 of trains by means of steam locomotives. This is a 
 matter within state control." Hartford F. Ins. Co. v. 
 Chi., Mil. & St. Paul Ry. Co., 62 Fed. Rep. 904. A 
 legislature may, if it chooses, make it a condition of 
 the right to run carriages propelled by the agency of 
 fire, that the corporation employing them shall be re- 
 sponsible for all injuries which fire may cause. Inger- 
 soll v. Stockbridge & Pittsfidd R. R. Co., 8 Allen, 438; 
 Grand Trunk Ry. Co. v. Richardson, 9 U. S. 454. And, 
 finally, these statutes are designed to protect the rights 
 of those who have no contractual relations to the cor- 
 porations which inflict the injury. In such a case, 
 when both parties are equally faultless, the legislature 
 may properly consider it to be just that the duty of 
 insuring private property against loss or injury caused 
 by the use of the dangerous instruments should rest 
 upon the railroad company, which employs the in- 
 struments and creates the peril for its own profit, rather 
 than upon the owner of the property who has no con- 
 trol over or interest in these instruments. Quite aside 
 from the considerations which support such a statutory 
 liability against railroad corporations, it may be added 
 that it is in no sense an extension of the rule of the 
 common law to modern conditions, but in reality a 
 return to the original common-law doctrine under which 
 every person who permitted fire started by him to 
 escape beyond his house or close was liable to every
 
 CONSTITUTIONAL DECISIONS 643 
 
 New York 
 
 one who suffered loss or injury thereby. The severity 
 of that early English rule was moderated by numerous 
 statutes, among which are 6 Anne and 14 Geo. III. 
 As to these two last-mentioned statutes it has been 
 held that they became by adoption a part of the common 
 law of this State (Thompson's Negligence, vol. 1, pp. 148 
 et seq., notes under " Liability for Damages by Fire," 
 and Webb v. R., W. & 0. R. R. Co., 49 N. Y. 420, 426), 
 under which neither individuals nor corporations are 
 liable for escaping fire unless there is negligence. Clark 
 v. Foot, 8 Johns. 421 ; Bennett v. Scutt, 18 Barb. 347, 349; 
 Stuart v. Hawley, 22 Barb. 619, 621 ; Radcliff's Exrs. v. 
 Mayor, etc., of Brooklyn, 4 N. Y. 195, 200; Calkins v. 
 Barger, 44 Barb. 424; Sheldon v. Hudson R. R. R. Co., 
 14 N. Y. 219; Steinweg v. Erie Ry., 43 N. Y. 123, 127. 
 The cited cases arising out of injuries inflicted by ani- 
 mals of known dangerous or vicious propensities, and 
 the liability which has often been imposed for the 
 maintenance of private nuisances, we shall not discuss, 
 for we think they are governed by well-settled principles 
 which clearly have no application to the questions now 
 before us. 
 
 In the addenda to the instructive brief of the counsel 
 for the commission our attention is called to three de- 
 cisions of the Federal Supreme Court which have been 
 but recently decided and are not yet officially reported. 
 Noble State Bank v. Haskell, 219 U. S. 104; Assaria 
 State Bank v. Dolley, 219 U. S. 121, and Engel v. O'Mal- 
 ley, 219 U. S. 128. These cases, it is contended, strongly 
 support the validity of the legislation which we are 
 condemning because, as counsel asserts, they go directly 
 to the ultimate question: "Is the act an unreasonable 
 regulation of the status of employment?" We have
 
 644 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 tried to make it clear that in our judgment this statute 
 is not a law of regulation. It contains not a single 
 provision which can be said to make for the safety, 
 health or morals of the employe's therein specified, nor 
 to impose upon the enumerated employers any duty 
 or obligations designed to have that effect. It does 
 not affect the status of employment at all, but writes 
 into the contract between the employer and employe, 
 without the consent of the former, a liability on his 
 part which never existed before and to which he is 
 permitted to interpose practically no defense, for he 
 can only escape liability when the employe is injured 
 through his own willful misconduct. That is a defense 
 which needs no legislative sanction, since it would be 
 abhorrent to the most primitive notions of justice to 
 permit one to impose liability for his willfully self- 
 inflicted injuries upon another who is wholly free from 
 responsibility for them. The case of Engel v. O'Malley 
 (supra) is so clearly distinguishable from the case at 
 bar that we need only state the facts to mark the con- 
 trast. The Engel case arose under a New York statute 
 which provides that individuals and firms shall not 
 engage in the business of receiving deposits for safe- 
 keeping or for transmission, or for any other purpose, 
 or in the business of banking, without first obtaining 
 from the state comptroller a license. The same statute 
 further provides that applicants for such a license must 
 pay a prescribed fee, give bonds and submit to other 
 restrictions. We have already passed upon the con- 
 stitutionality of certain parts of that statute (Laws of 
 1907, Chapter 185) in Musco v. United Surety Co., 196 
 N. Y. 459, which was an action upon a bond given 
 under it, and have held that "the regulation of the busi-
 
 CONSTITUTIONAL DECISIONS 645 
 
 New York 
 
 ness of receiving deposits is plainly within the power 
 possessed by the State to regulate the conduct of various 
 pursuits when necessary for the protection of the public " 
 (p. 465) . The portion of the statute under consideration 
 in the last-cited case was plainly directed against an 
 obvious evil which vitally affected the public welfare. 
 The city of New York is the gateway through which 
 this country admits each year thousands of poor and 
 ignorant immigrants who deal with individuals and 
 firms engaged in the business of exchanging domestic 
 for foreign money, receiving deposits and transmitting 
 remittances to foreign ports. It is a business which may, 
 and probably does, attract some irresponsible and mer- 
 cenary adventurers. A law designed to regulate and 
 safeguard such a business in a way which affects no 
 constitutional property rights, is plainly within the 
 police power of the State. That is all that was involved 
 in the Musco case, and that is the extent to which this 
 court has passed upon the constitutionality of the 
 New York statute. Laws of 1907, Chapter 185. It 
 need hardly be argued that a law passed under the 
 guise of such a purpose, but having in fact no relation 
 to it, and accomplishing nothing to make the business 
 of receiving deposits more safe, would be as far be- 
 yond the sphere of the police power as an amendment 
 to the Banking Law requiring banks and bankers to 
 protect their customers, to w r hom they pay moneys, 
 against thefts or other physical losses thereof; or an 
 amendment to the Labor Law which would compel 
 the industrial employers to give each employe" a vaca- 
 tion on full pay during two months of every year. 
 
 As to the cases of Noble State Bank v. Haskell, 219 
 U. S. 104, and Assaria State Bank v. Dolley, 219 U. S.
 
 646 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 121, we have only to say that if they go so far as to 
 hold that any law, whatever its effect, may be upheld 
 because by the " prevailing morality" or the " strong 
 and preponderant opinion" it is deemed "to be greatly 
 and immediately necessary to the public welfare," we 
 cannot recognize them as controlling of our construc- 
 tion of our own constitution. That the business of 
 banking in the several States may be regulated by leg- 
 islative enactment is too obvious for discussion. That 
 the extent to which such state regulation may be 
 carried must depend upon the difference in constitu- 
 tional provisions is also plain. How far these late de- 
 cisions of the Federal Supreme Court are to be regarded 
 as committing that tribunal to the doctrine that any 
 citizen may be deprived of his private property for the 
 public welfare we are not prepared to decide. All that 
 it is necessary to affirm in the case before us is that in 
 our view of the constitution of our State, the liability 
 sought to be imposed upon the employers enumerated 
 in the statute before us is a taking of property without 
 due process of law, and the statute is therefore void. 
 
 The judgment of the Appellate Division should be 
 reversed and judgment directed for the defendant, 
 with costs in all courts. 
 
 CULLEN, Ch. J.: 
 
 I concur in the opinion of Judge WERNER for reversal 
 of the judgment appealed from. I concede that the 
 legislature may abolish the rule of fellow servant as 
 a defense to an action by employe against the employer. 
 Indeed, we have decided that in upholding the so-called 
 Barnes Act. Schradin v. N. Y. C. & H. R. R. R. Co., 
 194 N. Y. 534. I concede that the legislature may also
 
 CONSTITUTIONAL DECISIONS 647 
 
 New York 
 
 abolish as a defense the rule of assumption of risk and 
 that of contributory negligence unless the accident 
 proceeds from the willful act of the employe". I concede 
 that in a work, occupation, or business of such a nature 
 that the legislature might prohibit its pursuit or exer- 
 cise altogether, the legislature may prescribe terms 
 under which it may be carried on. Plainly, this 
 litigation does not present such a case. The legis- 
 lature could not revoke the franchise it had previously 
 given to the defendant to operate a railroad. People v. 
 O'Brien, 111 N. Y. 1. I am not prepared to deny that 
 where the effects of the work, even though prosecuted 
 carefully, go beyond a person's own property and in- 
 jure third persons in no way connected therewith, the 
 person for whose account the work is done may be held 
 liable for injuries occasioned thereby. I also concede 
 the most plenary power in the legislature to prescribe 
 all reasonable rules for the conduct of the work which 
 may conduce to the safety and health of persons em- 
 ployed therein. But I do deny that a person employed 
 in a lawful vocation, the effects of which are confined to 
 his own premises, can be made to indemnify another for 
 injury received in the work unless he has been in some 
 respect at fault. I am not impressed with the argument 
 that " the common law imposed upon the employe 
 entire responsibility for injuries arising out of the neces- 
 sary risks or dangers of the employment. The statute 
 before us merely shifts such liability upon the em- 
 ployer." It is the physical law of nature, not of govern- 
 ment, that imposes upon one meeting with an injury, 
 the suffering occasioned thereby. Human law cannot 
 change that. All it can do is to require pecuniary in- 
 demnity to the party injured, and I know of no principle
 
 648 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New York 
 
 i 
 
 on which one can be compelled to indemnify another 
 for loss unless it is based upon contractual obligation 
 or fault. It might as well be argued in support of a 
 law requiring a man to pay his neighbor's debts, that 
 the common law requires each man to pay his own debts, 
 and the statute in question was a mere modification 
 of the common law so as to require each to pay his 
 neighbor's debts. It is urged that the legislation before 
 us can be upheld on the decision of the Supreme Court 
 of the United States in Noble State Bank v. Haskell, 219 
 U. S. 104. In support of the claim there is cited from 
 the opinion the following: "It may be said in a general 
 way that the police power extends to all the great public 
 needs. Camfield v. United States, 167 U. S. 519. It 
 may be put forth in aid of what is sanctioned by usage, 
 or held by the prevailing morality or strong and pre- 
 ponderant opinion to be greatly and immediately neces- 
 sary to the public welfare" (p. 111). It is possible that 
 the doctrine of these two sentences would justify the 
 statute before us and possibly any legislation, if only 
 supported by a sufficient popular demand, but it is 
 both unfair and unsafe to excerpt fragmentary sentences 
 from the opinion of a court and interpret them apart 
 from the context of the whole opinion. However that 
 may be, the decision in the Noble Bank case is not 
 controlling upon this court in the construction of the 
 constitution of our own State, and I am not disposed to 
 accept it, at least, until it has received the approval of 
 a majority of the court. I concur with Judge WERNER 
 that the act, as applicable to the case before us, cannot 
 be considered as an exercise of the power of the State 
 to regulate corporations. The act is general, not con- 
 fined to corporations, and even if it were, I think its
 
 CONSTITUTIONAL DECISIONS 649 
 
 New York 
 
 effect would be a deprivation of property not authorized 
 by the reserved power to regulate. 
 
 As to corporations hereafter formed, the question 
 is very different. The franchise to be a corporation is 
 not one inherent in the citizen, but proceeds solely 
 from the bounty of the legislature, and for that reason 
 the legislature may dictate the terms on which it will 
 be granted and require the acceptance of the provisions 
 of this act as a condition of incorporation. Purdy v. 
 Erie R. R. Co., 162 N. Y. 42; Minor v. Erie R. R. Co., 
 171 N. Y. 566; People ex rel Schurz v. Cook, 110 N. Y. 
 443; s. c., 148 U. S. 397; Chicago, R. I. & Pac. R. Co. v. 
 Zernecke, 183 U. S. 582. Even in the case of existing 
 corporations, the corporate existence of all those created 
 since the constitution of 1846 may be revoked by the 
 legislature, though the property rights of such corpo- 
 rations and their special franchises other than the one 
 to be a corporation cannot be impaired. Const., arti- 
 cle VIII, 1 ; Lord v. Equitable Life Assur. Soc., 194 N. Y. 
 212. The property and franchise would have to be 
 managed by the owners as partners or tenants in com- 
 mon, and the legislature might require as a condition 
 of the continued right to be a corporation that before 
 the expiration of a reasonable period the provisions 
 of the statute should be accepted also by them. They 
 are in the condition of a tenant at will who, when the 
 landlord raises the rent, must either comply with his 
 terms, or, after the expiration of a reasonable time 
 prescribed by a notice to quit, surrender his rights 
 under the lease. But individual citizens, following 
 the ordinary vocations of life, asking no favors of the 
 government, whether a corporate or other franchise, 
 but only the protection of life and property, which every
 
 650 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 government owes to its citizens, and guilty of no fault, 
 cannot be compelled to contribute to the indemnity 
 of other citizens who, by misfortune or the fault of 
 themselves or others, have suffered injuries, except 
 by the exercise of the power of taxation imposed on 
 all, at least all of the same class, for the maintenance 
 of public charity. Of course, I am not now referring 
 to obligations springing from domestic relations. 
 
 CULLEN, Ch. J., GRAY, HAIGHT, WILLARD BART- 
 LETT, CHASE and COLLIN, JJ., concur with WERNER, J.; 
 CULLEN, Ch. J., also files an opinion, with whom WIL- 
 LARD BARTLETT, J., concurs. 
 
 Judgment reversed, etc. 
 
 OPINIONS OF JUSTICES 1 AS TO CONSTITUTIONALITY OF 
 HOUSE BILL No. 2154; SENATE No. 615 
 
 (209 Mass. 607) 
 
 Constitutional law; Workmen's Compensation Act; taking prop- 
 erty without due process of law 
 
 1. The rules of law relating to contributory negligence and 
 assumption of risk and the effect of negligence by a fellow 
 servant were established by the courts, not by the Con- 
 stitution, and the legislature may change them or do away 
 with them altogether, as defenses, as in its wisdom in the 
 exercise of powers intrusted to it by the Constitution it 
 deems will be best for the "good and welfare of this Com- 
 monwealth." 
 
 1 Massachusetts has a law permitting the submission of the 
 question of the constitutionality of a proposed law to the Supreme 
 Court before it is enacted. The decision in the text was rendered 
 pursuant to this law.
 
 CONSTITUTIONAL DECISIONS 651 
 
 Massachusetts 
 
 2. There is nothing unconstitutional in the provision of the 
 Compensation Act that it shall not apply to domestic 
 servants and farm laborers, nor in the provision that an 
 employe 1 shall be deemed to have waived his right of ac- 
 tion at common law if he shall not have given notice to his 
 employer as in the act provided. 
 
 3. As the Compensation Act does not contain any legal com- 
 pulsion to an acceptance by an employer or an employe" of 
 the provisions for compensation in lieu of damages, it is 
 not in conflict with the Fourteenth Amendment of the 
 Federal Constitution prohibiting the taking of property 
 without due process of law, and constitutes a valid exer- 
 cise of the power of the legislature of the commonwealth of 
 Massachusetts. 
 
 THE COMMONWEALTH OF MASSACHUSETTS 
 
 To the Honorable the Senate of the Commonwealth 
 of Massachusetts: 
 
 We have received the questions, of which a copy, 
 with the act referred to therein and the amendment 
 adopted by the Senate, is hereto annexed, and after 
 giving to them such consideration as we have been able 
 to give in the time at our disposal, we respectfully 
 answer them as follows . 
 
 The questions submitted to us are important, and 
 the proposed act involves a radical departure in the 
 manner of dealing with actions or claims for damages 
 for personal injuries received by employes in the course 
 of their employment from that which has heretofore 
 prevailed in this commonwealth; but we think that 
 nothing would be gained by an extended discussion 
 and we therefore content ourselves with stating briefly 
 the conclusions to which we have come and our reasons 
 therefor.
 
 652 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 The first section of the act (Part I, 1) provides that 
 "In an action to recover damages for personal injury 
 sustained by an employe" in the course of his employ- 
 ment, or for death resulting from personal injury so 
 sustained, it shall not be a defense : 
 
 " 1. That the employe" was negligent; 
 
 U 2. That the injury was caused by the negligence 
 of a fellow employe"; 
 
 "3. That the employe" had assumed the risk of the 
 injury." 
 
 , This section deals with actions at common law. We 
 construe clauses 1 and 2 in their reference to negligence 
 as meaning contributory negligence or negligence on 
 the part of a fellow servant which falls short of the 
 serious and willful misconduct which under Part II, 
 2, will deprive an employe of compensation. So con- 
 strued we think that the section is constitutional. We 
 neither express nor intimate any opinion whether it 
 would be unconstitutional if otherwise construed. The 
 rules of law relating to contributory negligence and 
 assumption of the risk and the effect of negligence by 
 a fellow servant were established by the courts, not 
 by the Constitution, and the legislature may change 
 them or do away with them altogether as defenses (as 
 it has to some extent in the Employers' Liability Act) 
 as in its wisdom in the exercise of powers intrusted to 
 it by the Constitution it deems will be best for the "good 
 and welfare of this Commonwealth." See Missouri 
 Pacific Railway v. Mackey, 127 U. S. 205; Minnesota 
 Iron Co. v. Kline, 199 U. S. 593. The act expressly 
 provides that it shall not apply to injuries sustained 
 before it takes effect. If, therefore, a right of action 
 which has accrued under existing laws for personal
 
 CONSTITUTIONAL DECISIONS 653 
 
 Massachusetts 
 
 injuries constitutes a vested right or interest, there is 
 nothing in the section which interferes with such rights 
 or interests. The effect of the section is not to authorize 
 the taking of property without due process of law, as 
 the Court of Appeals of New York held was the case 
 with the statute referred to in the preamble to the ques- 
 tions submitted to us, and which in consequence thereof 
 was declared by that court to be unconstitutional. 
 Ives v. South Buffalo Railway, 201 N. Y. 271. Con- 
 struing the section as we do, and as we think that it 
 should be construed, it seems to us that there is nothing 
 in it which violates any rights secured by the state or 
 Federal constitutions. We see nothing unconstitutional 
 in providing, as is done in Part I, 2, that the provisions 
 of 1 shall not apply to domestic servants and farm 
 laborers; nor in providing, as is done in Part I, 5, 
 that the employe shall be deemed to have waived his 
 right of action at common law if he shall not have given 
 notice to his employer as therein provided. The effect 
 of the provisions referred to is to leave it at the em- 
 ploye's option whether he will or will not waive his right 
 of action at common law. See Foster v. Morse, 132 
 Mass. 354. 
 
 The rest of the act deals mainly with a scheme for 
 providing, through the instrumentality of a corporation 
 established for that purpose entitled the Massachusetts 
 Employes' Insurance Association, and the subscription 
 of employers thereto, for compensation to employes 
 for personal injuries received by them in the course of 
 their employment, and not due to serious and willful 
 misconduct on their part. There is nothing in the act 
 which compels an employer to become a subscriber to 
 the association, or which compels an employe to waive
 
 654 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 his right of action at common law and accept the com- 
 pensation provided for in the act. In this respect the 
 act differs wholly so far as the employer is concerned 
 from the New York statute above referred to. By sub- 
 scribing to the association an employer voluntarily 
 agrees to be bound by the provisions of the act. The 
 same is true of an employ^ who does not choose to stand 
 upon his common-law rights. An employer who does 
 not subscribe to the association will no longer have the 
 right in an action by his employe against him at com- 
 mon law to set up the defense of contributory negligence 
 or assumption of the risk, or to show that the injury 
 was caused by the negligence of a fellow servant. In 
 the case of an employe" who does not accept the com- 
 pensation provided for by the act and whose employer 
 had become a subscriber to the association, an action 
 no longer can be maintained for death under the Em- 
 ployers' Liability Act. But these considerations do not 
 constitute legal compulsion or a deprivation of funda- 
 mental rights. We do not deem it necessary to take 
 up and consider in detail the numerous provisions by 
 which the right to compensation and the amount thereof 
 and the persons entitled thereto and the course of 
 procedure to be followed and matters relating thereto 
 are to be settled and determined. We assume, how- 
 ever, that the meaning of 4 and 7 of Part III of the 
 proposed act is that the approved agreement or deci- 
 sion therein mentioned is to be enforced by proper 
 proceedings in court, and not by process to be issued 
 by the Industrial Accident Board itself. Taking into 
 account the noncompulsory character of the proposed 
 act, we see nothing in any of these provisions which 
 is not "in conformity with " the Fourteenth Amendment
 
 CONSTITUTIONAL DECISIONS 655 
 
 Massachusetts 
 
 to the Federal Constitution or which infringes upon 
 any provision of our own constitution in regard to the 
 taking of property "without due process of law." It- 
 is within the power of the legislature to provide that 
 no agreement by an employe to waive his rights to 
 compensation under the act shall be valid. See Mis- 
 souri Pacific Railway v. Mackey, 127 U. S. 205; Min- 
 nesota Iron Co. v. Kline, 199 U. S. 593. 
 
 In regard to the amendment it is to be observed that 
 no liability insurance company is obliged to insure, 
 and that if it chooses to do so there is nothing uncon- 
 stitutional in requiring that it and the policy holder 
 shall be governed by the provisions of the act so far 
 as applicable. 
 
 It should be noted perhaps in the interest of accuracy 
 that there is no phrase in our constitution which in 
 terms requires that "property shall not be taken from 
 a citizen without due process of law." The quoted 
 words, which we take from the first question sub- 
 mitted to us, are a paraphrase of what is contained in 
 the constitution, but are not the language of the con- 
 stitution itself. 
 
 We have confined ourselves to the questions submitted 
 to us, and we answer both of them in the affirmative. 
 
 Owing to their absence from the commonwealth, the 
 CHIEF JUSTICE and Mr. Justice LORING have taken no 
 part in the consideration of the questions. 
 
 JAMES M. MORTON. 
 
 JOHN W. HAMMOND. 
 
 HENRY K. BRALEY. 
 
 HENRY N. SHELDON. 
 
 ARTHUR PRENTICE RUGG 
 July 24, 1911.
 
 656 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 EDWARD G. BORGNIS v. FALK COMPANY 
 (00 Wis. 000, 133 N. E. Rep. 209) 
 
 Constitutional law; Workmen's Compensation Act; classifica- 
 tion of employments; public policy; abolishing common-law 
 defenses; coercing employers to accept compensation princi- 
 ple ; industrial commission not a court ; violating obligation of 
 contract 
 
 1. Where a constitution contains on a particular subject no 
 express command but only general language or policy, the 
 conditions prevailing at the time of its adoption must have 
 their due weight; but the changed social, economic and 
 governmental conditions and ideals of the time as well as 
 the problems which the changes have produced, must also 
 logically enter into the consideration and become influential 
 factors in the settlement of problems of constitutional in- 
 terpretation. 
 
 2. The term "public policy" is frequently used very vaguely, 
 and evidently is so used in the Compensation Law. It is, 
 however, quite a definite thing. Public policy on a given 
 subject is determined by the Constitution itself or by 
 statutes passed within constitutional limitations. Only in 
 the absence of such constitutional or statutory determina- 
 tion may it be determined by the decisions of the courts. 
 
 3. The classification of employers into those who do and 
 those who do not elect to come under the compensation 
 feature of the statute and giving to each different rights 
 and remedies is not unlawful 
 
 4. The provision of the statute making it applicable only to 
 employers who employ four or more workmen does not 
 constitute an unlawful classification. 
 
 5. The provision that if one section or portion of the law 
 shall be declared to be invalid other portions shall not be 
 affected, or shall be affected in a particular way, is not 
 unconstitutional .
 
 CONSTITUTIONAL DECISIONS 657 
 
 Wisconsin 
 
 6. There is no greater right to abolish the common-law de- 
 fenses as applicable to actions growing out of injuries in 
 the hazardous industries than there is to abolish those de- 
 fenses in relation to the nonhazardous occupations. 
 
 7. The statute is not unconstitutional as coercing employers 
 to accept its provisions by abolishing their common-law 
 defenses if they refuse to elect to be bound by the com- 
 pensation principle. 
 
 8. The Industrial Commission is not a court within the 
 meaning of article 7, 16, of the constitution of Wiscon- 
 sin and therefore the statute creating such commission is 
 not unconstitutional. 
 
 9. The right to bring an action in the future for a tort not yet 
 committed can in no way affect the contract of employ- 
 ment between an employer and his employes, and, there- 
 fore, the Compensation Act is not unconstitutional as 
 violating the obligation of the contract between an em- 
 ployer and his workmen. 
 
 Appeal from Circuit Court, Milwaukee County; 
 W. J. TURNER, Judge. 
 
 Suit by Edward G. Borgnis and others against the 
 Falk Company, to restrain defendant from adopting 
 the Workmen's Compensation Law (Laws of 1911, 
 Chapter 50) during the continuance of complainants' 
 contracts of employment. From a decree in favor of 
 complainants, defendant appeals. Reversed and re- 
 manded, with directions. 
 
 It appears by the complaint that the defendant is 
 a manufacturing corporation in Milwaukee, employing 
 at its shops many workmen, among whom are the 
 plaintiffs; the plaintiff Borgnis is the superintendent 
 of one of the departments in the defendant's establish- 
 ment at a salary of $2,000 per year, under a contract 
 42
 
 Wisconsin 
 
 extending some time in the future; the plaintiff Schu- 
 macher is an infant 17 years of age, employed under 
 an apprenticeship contract which has yet nearly three 
 years to run. The complaint further alleges that the 
 defendant threatens to file an election to become sub- 
 ject to the provisions of Chapter 50 of the Session Laws 
 of 1911, known as the " Workmen's Compensation 
 Law"; that such election will compel the plaintiffs 
 severally to withdraw from their said contracts or to 
 submit to the provisions of said act; and that hence 
 said election will thus work irreparable injury to the 
 plaintiffs, for which they have no adequate remedy at 
 law. The prayer is that the defendant be enjoined 
 from filing such election during the continuance of 
 the contracts. By answer the defendant admitted the 
 allegations of the complaint, except the allegations of 
 irreparable injury and absence of an adequate remedy 
 at law, which were denied, and as an affirmative defense 
 alleged that the act in question was null and void, 
 because it violates a number of specified articles of the 
 Constitutions of the State and of the United States, 
 and hence that the defendant's election to become sub- 
 ject to the act could not possibly work any injury to 
 the plaintiffs. Upon motion, judgment was entered 
 upon the pleadings enjoining the defendant from elect- 
 ing to become subject to the act during the continuance 
 of the plaintiffs' contracts, and the defendant appeals. 
 
 Carpenter & Poss, for appellant. 
 
 Arthur Breslauer and Michael Levin, for respondents. 
 
 L. H. Bancroft, Attorney General, and Russell Jack- 
 son, Deputy Attorney General, for the State.
 
 CONSTITUTIONAL DECISIONS 659 
 
 Wisconsin 
 
 C. H. Crownhart, Joseph D. Beck and John R. Com- 
 mons, Industrial Commission of Wisconsin, pro se. 
 
 WINSLOW, C. J. (after stating the facts as above) : 
 
 We are not certainly advised as to the exact ground 
 on which the decision below was reached, but we assume 
 that it was on the theory that the law in question was 
 a valid law; that it was retrospective in its effect, and 
 that if the defendant elected to become subject to the 
 act the plaintiffs would be compelled to breach their 
 existing contracts or submit to the terms of the act, 
 and thus lose valuable rights; and hence that equity 
 might and should restrain their employer from electing 
 to come under the law until their existing contracts 
 had expired. 
 
 It seems to be true that this action might very well 
 be disposed of without considering the question of the 
 validity of the act in question. Ordinarily under such 
 circumstances that course would be the proper one to 
 pursue, for the question of the constitutionality of a 
 statute passed by the legislature is not one to be lightly 
 taken up, and generally such a question will not be 
 decided unless it be necessary to decide it in order to 
 dispose of the case. There are circumstances here 
 present, however, which seem to call very loudly for 
 immediate consideration of the question of the validity 
 of the act in question, if under any view of the case 
 it can be considered as involved. The legislature, in 
 response to a public sentiment which cannot be mis- 
 taken, has passed a law which attempts to solve certain 
 very pressing problems which have arisen out of the 
 changed industrial conditions of our time. It has en- 
 deavored by this law to provide a way by which em-
 
 660 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 ployer and employed may, if they so choose, escape 
 entirely from that very troublesome and economically 
 absurd luxury known as "personal injury litigation," 
 and resort to a system by which every employe" not 
 guilty of willful misconduct may receive at once a 
 reasonable recompense for injuries accidentally received 
 in his employment under certain fixed rules, without a 
 lawsuit and without friction. 
 
 A considerable number of employers have accepted 
 the terms of the act, but unquestionably many are 
 waiting until the question of the constitutionality of 
 the act be authoritatively settled by this court. Nor 
 is this attitude either blameworthy or surprising. If 
 an employer elects to accept the act and proceeds to pay 
 out the sums which it requires for a year or more, and 
 then the act should be declared unconstitutional, it 
 might well be that he would have paid out considerable 
 sums which under the former system he would not be 
 required to pay at all, because he was not negligent, and 
 that he would also be subject to suits to recover addi- 
 tional sums by those who, without contributory negli- 
 gence, had suffered injury and had received compensa- 
 tion under the law. The situation is unquestionably 
 one of much doubt and uncertainty among the great 
 industries of the State, and it must remain such until 
 this court has spoken. Many employers of labor who 
 have not accepted the law have taken that course, not 
 because they have chosen definitely to decline the 
 terms of the law, but because they do not know whether 
 they will be protected if they accept and act under it. 
 Such a condition of uncertainty ought not to be allowed 
 to exist, if it can be removed. This court cannot prop- 
 erly decide questions which are not legitimately in-
 
 CONSTITUTIONAL DECISIONS 661 
 
 Wisconsin 
 
 volved in bona fide lawsuits, but it may properly decide 
 all questions which are so involved, even though it 
 be not absolutely essential to the result that all should 
 be decided. The validity of the statute in question is 
 a matter which may be legitimately considered in the 
 decision of this case. If the statute be unconstitu- 
 tional and void, then it is certain that the plaintiffs 
 have no cause of action, because an election to accept 
 the terms of a void statute could harm no one. Im- 
 pressed with this view of our duty under the circum- 
 stances, we advanced the present case upon the cal- 
 endar, and invited argument upon the mam question 
 as to the constitutionality of the statute, not only 
 from the Attorney General on behalf of the State, but 
 from any attorney interested in the question. In pur- 
 suance of this invitation the Attorney General and the 
 Industrial Commission filed briefs, and oral argument 
 was made by the Deputy Attorney General. The 
 case has been fully presented, therefore, both by brief 
 and argument, and we are now to consider whether 
 there be any solid foundation for the attack made upon 
 the law. In undertaking this task it will be necessary 
 first to set forth in some detail its fundamental provi- 
 sions. 
 
 It adds thirty- two new sections to the statutes, the 
 first eight of which sections are as follows: (The court 
 here sets forth the first eight sections of the statute.) 
 
 By a later act passed at the same session of the legis- 
 lature (Chapter 485, Laws of 1911) an Industrial Com- 
 mission, composed of three members, was created, which, 
 among numerous other duties, is required to perform 
 all the duties vested in the Industrial Accident Board 
 aforesaid, and thus the last-named board has passed
 
 662 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 out of existence. In re Filer & Stowell Co. (present 
 term), 132 N. W. 584. The act is quite long, as the 
 complicated and delicate subject with which it deals 
 manifestly requires, but its general purport and effect 
 so far as this case is concerned may be briefly sum- 
 marized : 
 
 It creates an administrative board to carry its pro- 
 visions into effect. It divides all private employers 
 of labor into two classes: (1) Those who elect to come 
 under the law; and (2) those who do not so elect. It 
 takes away the defenses of assumption of risk, and 
 negligence of a coemploye* from the second class (except 
 'that where there are less than four coemployes the 
 latter defense is not disturbed), but leaves both de- 
 fenses intact to the first class. It prescribes the manner 
 in which an employer may elect to come under its 
 terms, and how an employe" may make his election, 
 and when silence on the part of the employe will be 
 considered an election; but it does not in terms compel 
 either employer or employe* to submit to its provisions. 
 It then provides a comprehensive scheme by which, 
 after both parties have so elected, any substantial 
 injury, whether the result be fatal or not, received by 
 the employe in the course of or incidental to his em- 
 ployment (except those caused by willful misconduct) 
 shall be compensated for by the employer according 
 to certain definite rules, which rules are to be adminis- 
 tered by the administrative board aforesaid by means 
 of simple procedure definitely laid down, which gives 
 to both parties fair notice and hearing, and results in 
 findings and an award which may be filed in the Circuit 
 Court and become a judgment. It further provides 
 that the findings of fact shall be conclusive and the
 
 CONSTITUTIONAL DECISIONS 663 
 
 Wisconsin 
 
 award subject to review only by action in the Circuit 
 Court of Dane County, in which it can be set aside 
 only (1) If the commission acted without or in excess 
 of its powers; (2) if the award was procured by fraud; 
 or (3) if the award is not supported by the findings of 
 fact. It then provides that the judgment thus rendered 
 shall be subject to appeal to the Supreme Court. 
 
 For all the essential purposes of this discussion, it 
 may truly be said that this is the law which is before 
 us, and the question is simply whether there is any 
 vital part of it which the legislature may not enact 
 because the Constitution forbids it. It is matter of 
 common knowlege that this law forms the legislative 
 response to an emphatic, if not a peremptory, public 
 demand. It was admitted by lawyers, as well as lay- 
 men, that the personal injury action brought by the 
 employe against his employer to recover damages for 
 injuries sustained by reason of the negligence of the 
 employer had wholly failed to meet or remedy a great 
 economic and social problem which modern indus- 
 trialism has forced upon us, namely, the problem of 
 who shall make pecuniary recompense for the toll of 
 suffering and death which that industrialism levies and 
 must continue to levy upon the civilized world. This 
 problem is distinctly a modern problem. In the days 
 of manual labor, the small shop, with few employes, 
 and the stagecoach, there was no such problem, or, if 
 there was, it was almost negligible. Accidents there 
 were in those days, and distressing ones ; but they were 
 relatively few, and the employe who exercised any 
 reasonable degree of care was comparatively secure 
 from injury. There was no army of injured and dying, 
 with constantly swelling ranks marching with halting
 
 664 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 step and dimming eyes to the great hereafter. This is 
 what we have with us now, thanks to the wonderful 
 material progress of our age, and this is what we shall 
 have with us for many a day to come. Legislate as 
 we may in the line of stringent requirements for safety 
 devices or the abolition of employers' common-law 
 defenses, the army of the injured will still increase, 
 and the price of our manufacturing greatness will still 
 have to be paid in human blood and tears. To speak 
 of the common-law personal injury action as a remedy 
 for this problem is to jest with serious subjects, to give 
 a stone to one who asks for bread. The terrible eco- 
 nomic waste, the overwhelming temptation to the com- 
 mission of perjury, and the relatively small proportion 
 of the sums recovered which comes to the injured par- 
 ties in such actions, condemn them as wholly inadequate 
 to meet the difficulty. 
 
 In approaching the consideration of the present law, 
 we must bear in mind the well-established principle 
 that it must be sustained, unless it be clear beyond 
 reasonable question that it violates some constitutional 
 limitation or prohibition. That governments founded 
 on written constitutions which are made difficult of 
 amendment or change lose much in flexibility and adap- 
 tability to changed conditions there can be no doubt. 
 Indeed that may be said to be one purpose of the writ- 
 ten constitution. Doubtless they gain enough in sta- 
 bility and freedom from mere whimsical and sudden 
 changes to more than make up for the loss in flexibility ; 
 but the loss still remains, whether for good or ill. A 
 constitution is a very human document, and must 
 embody with greater or less fidelity the spirit of the 
 time of its adoption. It will be framed to meet the
 
 CONSTITUTIONAL DECISIONS 665 
 
 Wisconsin 
 
 problems and difficulties which face the men who make 
 it, and it will generally crystallize with more or less 
 fidelity the political, social and economic propositions 
 which are considered irrefutable, if not actually in- 
 spired, by the philosophers and legislators of the time; 
 but the difficulty is that, while the Constitution is 
 fixed or very hard to change, the conditions and prob- 
 lems surrounding the people, as well as then* ideals, are 
 constantly changing. The political or philosophical 
 aphorism of one generation is doubted by the next, 
 and entirely discarded by the third. The race moves 
 forward constantly, and no Canute can stay its progress. 
 
 Constitutional commands and prohibitions, either 
 distinctly laid down in express words or necessarily 
 implied from general words, must be obeyed, and im- 
 plicitly obeyed, so long as they remain unamended or 
 unrepealed. Any other course on the part of either 
 legislator or judge constitutes violation of his oath of 
 office; but when there is no such express command or 
 prohibition, but only general language, or a general 
 policy drawn from the four corners of the instrument, 
 what shall be said about this? By what standards is 
 this general language or general policy to be interpreted 
 and applied to present day people and conditions? 
 When an eighteenth-century constitution forms the 
 charter of liberty of a twentieth-century government, 
 must its general provisions be construed and interpreted 
 by an eighteenth-century mind in the light of eighteenth- 
 century conditions and ideals? Clearly not. This 
 were to command the race to halt in its progress, to 
 stretch the State upon a veritable bed of Procrustes. 
 
 Where there is no express command or prohibition, 
 but only general language or policy to be considered,
 
 666 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 the conditions prevailing at the time of its adoption 
 must have their due weight; but the changed social, 
 economic, and governmental conditions and ideals of 
 the time, as well as the problems which the changes 
 have produced, must also logically enter into the con- 
 sideration, and become influential factors in the settle- 
 ment of problems of construction and interpretation. 
 These general propositions are here laid down, not 
 because they are considered either new or in serious 
 controversy, but because they are believed to be pe- 
 culiarly applicable to a case like the present, where a 
 law which is framed to meet new economic conditions 
 and difficulties resulting therefrom is attacked prin- 
 cipally because it is believed to offend against consti- 
 tutional guaranties or prohibitions couched in general 
 terms, or supposed general policies drawn from the 
 whole body of the instrument. 
 
 Passing to the consideration of the contentions made 
 in the present case, we note in limine that this is not 
 a compulsory law. No employer is compelled to pay 
 damages to an employe without having had his day 
 in court. It is true that the argument is made that the 
 law is practically coercive; but that argument is not 
 regarded by us as sound, and will be taken up and 
 treated later in this opinion. We are therefore re- 
 lieved from all consideration of the question whether 
 a compulsory compensation act offends against those 
 clauses of the state and Federal constitutions which 
 guarantee all citizens against the deprivation of prop- 
 erty without due process of law. This would be a 
 question of greater difficulty than those which are 
 presented in the present case. It was decided in the 
 affirmative by the Court of Appeals of New York
 
 CONSTITUTIONAL DECISIONS 667 
 
 Wisconsin 
 
 (Ives v. S. B. Ry. Co., 201 N. Y. 271; 94 N. E. 431), 
 and in the negative by the Supreme Court of Washing- 
 ton [State ex rel. Clausen (Sept. 27, 1911), 117 Pac. 1101], 
 and we express no opinion upon it. 
 
 The contention which naturally seems to come first 
 in order is the objection that the whole first section, 
 abolishing the defenses of assumption of risk and negli- 
 gence of a fellow servant, is void, because, as it is said, 
 public policy does not require their abrogation in any 
 but the hazardous trades; it being admitted that in 
 these last-named trades these defenses may properly 
 be abolished. 
 
 The term "public policy" is frequently used very 
 vaguely, and evidently is so used here. It is, however, 
 quite a definite thing. Public policy on a given sub- 
 ject is determined either by the Constitution itself or 
 by statutes passed within constitutional limitations. 
 In the absence of such constitutional or statutory 
 determination only may the decisions of the courts 
 determine it. Hartford Ins. Co. v. (7., M. & St. P. Ry. 
 Co., 70 Fed. Rep. 201; 17 C. C. A. 62; 30 L. R. A. 193; 
 s. c., 175 U. S. 91; 20 Sup. Ct. 33; 44 L. Ed. 84. This 
 court has said: "We know of no ground upon which a 
 constitutional legislative enactment can be rightly 
 spoken of as contrary to public policy." Julien v. 
 Model B. L. & L Assn., 116 Wis. 79; 92 N. W. 561; 61 
 L. R. A. 668. And the remark is certainly correct. 
 When acting within constitutional limitations, the legis- 
 lature settles and declares the public policy of a State, 
 and not the court. True, where the legislature has not 
 spoken on a subject, and the courts in the course of 
 their duty have declared the principle of common law 
 applicable thereto, public policy may be truly said to
 
 668 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 be thus created; but any public policy thus created by 
 the courts may be at any time reversed or changed by 
 the legislature, provided it act within constitutional 
 lines. The people, acting directly by means of a ref- 
 erendum, or through their representatives in constitu- 
 tional conventions or legislative bodies, are the makers 
 of public policy, and it is only when the people have 
 failed to speak in these methods that the courts can be 
 said to have power to make public policy by decision. 
 A constitutional statute cannot be contrary to public 
 policy it is public policy. 
 
 The contention that a statute is unconstitutional 
 because it is against public policy amounts to nothing 
 more than a contention that it is unconstitutional; 
 hence we address ourselves directly to that question 
 and thereby gain something in clearness of thought. 
 
 The two defenses which the legislature has thus at- 
 tempted to take away are not intrenched behind any 
 express constitutional provision, nor were they origi- 
 nally created by legislative action. They were both 
 evolved by the courts. At a time when industries of 
 all kinds were comparatively simple and free from 
 danger, when employes of a common master were few 
 in number and generally acquainted with each other, 
 and when a personal injury action was a rarity, it was 
 thought not to be unreasonable that an employe should 
 assume those simple risks which were plainly before 
 him, and should not be heard to complain if he were 
 injured by the careless act of a fellow workman by 
 whose side he had continued to work when he must 
 have well known the nature and habits of the man. 
 The precedent once made was generally followed, until 
 it became buttressed by a multitude of decisions in
 
 CONSTITUTIONAL DECISIONS 669 
 
 Wisconsin 
 
 practically all of the jurisdictions whose jurisprudence 
 is founded upon the English common law. But, as 
 has been pointed out earlier in this opinion, the condi- 
 tions surrounding employer and employed have vastly 
 changed during the last half century, and now the 
 legislature, having become convinced that new condi- 
 tions call for a change in rules of liability, have declared 
 that such a change shall be made. They have changed 
 the rule established by the courts, because they deem 
 another rule better fitted to deal with the problems of 
 the time, or, in other words, because they deem it best 
 to establish a changed public policy. 
 
 It is frankly admitted by appellant that it is within 
 the legislative power to make this change with regard 
 to the hazardous trades, but not with regard to what 
 are called the nonhazardous trades. But why not? 
 There are, of course, some occupations which are ex- 
 ceptionally hazardous, and it may well be that it would 
 be within legislative discretion to classify these very 
 hazardous occupations and remove the defenses as to 
 them, while retaining them as to others less hazardous. 
 Indeed, that very thing has been done and has been 
 approved by the courts in this and many other States, 
 especially in the case of railroads and to some extent 
 with other industries. M. I. Co. v. Kline, 199 U. S. 
 593; 26 Sup. Ct. 159; 50 L. Ed. 322; Stats. Wis., 1816, 
 as amended by Chapter 254, Laws of 1907; Kiley v. 
 C., M. & St. P. Ry. Co., 142 Wis. 154; 125 N. W. 464; 
 Stats. Wis., 1636j-1636;j (Chapter 303, Laws of 
 1905). 
 
 But because there is room for classification it does 
 not follow that legislation without classification is un- 
 constitutional. There are hazards in all occupations;
 
 670 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 indeed, they follow every man from the cradle to th( 
 grave. What constitutional requirement, either express 
 or implied, clothes these court-made defenses witl 
 exceptional sanctity as to the less hazardous industries 
 and warns off from them the sacrilegious hand of th( 
 legislature? We are referred to none, and we kno\^ 
 of none. It is admitted in the Ives case, supra, thai 
 both the fellow-servant defense and the contributory 
 negligence defense, being of judicial origin, may b< 
 changed or abolished by the legislature. See, also 
 Opinion of the Justices of the Massachusetts Supreme Ju 
 dicial Court on the Personal Injuries Act of 1911, 2Q{ 
 Mass. 607, 96 N. E. 308. We see absolutely no grounc 
 for the contention that these defenses may be lawfully 
 abrogated as to the more hazardous industries, bu 
 must be forever held sacred as to the less hazardous 
 industries. There may be a less persuasive reason foi 
 the change in the case of the latter class of industries 
 but this does not deprive the legislature of the powei 
 to make it. 
 
 But it is said that there is no proper classificatior 
 here, and hence that the law is fatally discriminating 
 in its character. The two defenses are preserved intad 
 to employers who elect to come under the law anc 
 taken away from those who do not so elect. The rules 
 governing classification are familiar and are in brie: 
 as follows : It must be based on substantial distinctions 
 which make real differences; it must be germane tc 
 the purposes of the law; it must not be limited to exist- 
 ing conditions only and must apply equally to eact 
 member of the class. It seems to us that this classifi- 
 cation fully meets these requirements; certainly then 
 will be very real differences between the situation oi
 
 CONSTITUTIONAL DECISIONS 671 
 
 Wisconsin 
 
 the employer who elects to come under the law and the 
 employer who does not. If the consenting employer 
 only employs workmen who also elect to come under 
 the law, he can never be mulcted in heavy damages, 
 and will know whenever an employe" is injured prac- 
 tically just what must be paid for the injury. Surely 
 this is a different situation from the situation of the 
 man who is liable to be brought into court by an injured 
 employe at any time and obliged to defend common- 
 law actions upon heavy claims unliquidated in their 
 character, the outcome of which actions none can fore- 
 tell. On the other hand, if, as seems quite likely, the 
 greater part of the consenting employer's workmen 
 consent, but some do not, and these latter are still 
 retained in the employment, the same considerations 
 will apply with somewhat less force. On the one hand, 
 there is a class of consenting employers employing 
 wholly or largely consenting workmen, and having 
 definite and fixed obligations to their workmen in case 
 of injury; on the other hand is a class of nonconsenting 
 employers who have no such fixed obligations in case 
 of injury to their workmen, but choose to meet every 
 such workman in court and fight out the question of 
 liability. There seems a very robust difference between 
 these two classes. But after all there is another dis- 
 tinction which seems perhaps more satisfactory. The 
 consenting employer has done his share, and it must be 
 considered a considerable share, in rendering successful 
 the legislative attempt to meet and solve a difficult 
 social and economic problem. Even if it be true (which, 
 as before stated, is not decided) that he may not be 
 compelled under our constitutions, state and national, 
 to assist in the solution of this problem, still does not
 
 672 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 his voluntary act in giving that assistance constitute 
 a substantial distinction, making a real difference of 
 situation between him and the employer who refuses 
 his aid a difference which justifies a difference in 
 treatment? 
 
 It seems to us that this question must be answered 
 in the affirmative, and if it be so answered there can 
 be no doubt as to the legitimacy of the classification, 
 for the reason that it is quite apparent that the other 
 conditions of valid classification are fully satisfied. 
 There can be no doubt that the classification is germane 
 to the purpose of the law, and it is not limited in its 
 application to existing conditions only, and applies 
 equally to each member of the class. 
 
 The minor classification by which the fellow-servant 
 defense is preserved to all employers employing less 
 than four employes in a common employment is also 
 attacked as having no proper legal basis; but it seems 
 to us that the grounds of classification here are more 
 persuasive even than in the case just discussed. The 
 man who is employed with one or two other men in a 
 given employment in all reasonable probability knows 
 their characteristics well, and will probably be with 
 them a great part of the time. He will have ample 
 opportunity to form a just judgment as to the risk of 
 injury from their negligence which he will run if he 
 works with them, and will be enabled to shape his own 
 conduct accordingly; but the man who is one of a large 
 number of men, many of whom he never sees, and some 
 of these latter having duties to perform in distant 
 places upon the due performance of which his own 
 safety depends, has no opportunity to acquire any 
 accurate knowledge of the characteristics of many of
 
 CONSTITUTIONAL DECISIONS 673 
 
 Wisconsin 
 
 his fellow workmen, and cannot intelligently decide 
 what risk he runs at the hands of such distant and un- 
 known employes. The difference in situation is not 
 merely fanciful; it is real. In one case, the employe" 
 knows or has the means of knowing what to expect 
 from his colaborers; in the other case, he has neither 
 the knowledge nor the means of knowledge. Of course, 
 there will be cases on the border line, where the differ- 
 ence in situation will be very slight, or perhaps entirely 
 nonexistent. There will probably be no practical differ- 
 ence between the situation of the man who is one of 
 four or five employes in a given employment and the 
 situation of the man who is one of three; but this does 
 not militate against the legitimacy of the classification. 
 This is a necessary defect in all cases of classification 
 based upon numbers. The question is not whether 
 there may be some on one side of the line whose situa- 
 tion is practically the same as that of some on the 
 other side, but whether there "is a distinction between 
 the classes as classes, whether there are characteristics 
 which, in a greater degree, persist through the one 
 class than in the other which justify legal discrimina- 
 tion between them." State v. Evans, 130 Wis. 381; 
 HON. W. 241. 
 
 Passing from these questions of classification, we 
 meet the objection that the law, while in its words 
 presenting to employer and employe a free choice as 
 to whether he will accept its terms or not, is in fact 
 coercive, so that neither employer nor employe can be 
 said to act voluntarily in accepting it. As to the em- 
 ployer, the argument is that the abolition of the two 
 defenses is a club which forces him to accept; and as 
 to the employe", the argument is that if his employer 
 43
 
 674 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 accepts the law the employe" will feel compelled to accept 
 also, through fear of discharge if he do not accept. 
 
 Both of these arguments are based upon conjecture. 
 Laws cannot be- set aside upon mere speculation or 
 conjecture. The court must be able to say with cer- 
 tainty that an unlawful result will follow. We do not 
 see how any such thing can be said here. No one can 
 say with certainty what results will follow in the prac- 
 tical workings of the law. It may well be that many 
 manufacturers, especially those employing small num- 
 bers of employes and in the less dangerous trades, will 
 deliberately conclude that it will be better business 
 policy to exercise greater care in guarding their em- 
 ploye's from possible danger and greater discrimination 
 in the employment of careful men, and reject the law 
 entirely, running the risk of being able to prevent all 
 or nearly all accidents. It seems extremely probable 
 that the great bulk of workmen, especially of the 
 unskilled classes, will be glad to come under the act 
 and thus secure a certain compensation in case of in- 
 jury, in place of that very uncertain and expensive 
 thing, namely, the final result of a lawsuit ; but whether 
 this be so or not, it may be considered as reasonably 
 certain that very many will elect to come under the act 
 voluntarily and freely, and that those who do not will 
 probably come from the ranks of skilled labor, who 
 will deem the rates of compensation under the law as 
 entirely inadequate, or will be careful workmen in the 
 less dangerous trades, who will see no gain in bartering 
 their common-law rights for the restricted remedies 
 furnished by the statute. It cannot be said with any 
 certainty that such men will be discharged for their 
 failure to voluntarily come under the law. The proba-
 
 CONSTITUTIONAL DECISIONS 675 
 
 Wisconsin 
 
 bility would seem rather to be that they would be of 
 a class which the employer would wish to keep in his 
 employ, notwithstanding their attitude toward the 
 law. These matters are, however, purely speculative 
 and conjectural. None can say what the practical 
 operation of the law will be. It is enough for our pres- 
 ent purpose that no one can say with certainty that it 
 will operate to coerce either employer or employe*. 
 
 We thus reach the conclusion that there are no valid 
 constitutional objections to the first section of the law 
 in question, and this conclusion obviates the necessity 
 of any consideration of the provisions of 2394-32, 
 which aims to preserve the balance of the law intact 
 in case the whole or some part of 1 should be con- 
 sidered invalid. We may say in passing that we know 
 of no good reason why the legislature may not declare 
 its intention that one part or section of a law is not a 
 compensation for and that it may be separated from 
 the balance of the act for the very purpose of saving 
 such balance from being invalidated in case the first- 
 named part or section be held unconstitutional. We 
 think it would take a very extreme case of palpable 
 absurdity or falsity in such a provision to justify any 
 court in declaring such a declaration of legislative 
 intent ineffective, if indeed a court could make such a 
 declaration at all. 
 
 The next important contention is that the law is un- 
 constitutional because it vests judicial power in a body 
 which is not a court and is not composed of men elected 
 by the people in violation of those clauses of the state 
 constitution which vest the judicial power in certain 
 courts and provide for the election of judges by the 
 people, as well as in violation of the constitutional
 
 676 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 guaranties of due process of law. It was suggested at 
 the argument that the Industrial Commission might 
 perhaps be held to be a court of conciliation, as author- 
 ized to be created by 16 of article 7 of the state con- 
 stitution; but we do not find it necessary to consider 
 or decide this contention. We do not consider the 
 Industrial Commission a court, nor do we construe the 
 act as vesting in the commission judicial powers within 
 the meaning of the constitution. It is an administra- 
 tive body or arm of the government, which in the course 
 of its administration of a law is empowered to ascertain 
 some questions of fact and apply the existing law 
 thereto, and in so doing acts quasi judicially; but it is 
 not thereby vested with judicial power in the con- 
 stitutional sense. 
 
 There are many such administrative bodies or com- 
 missions, and with the increasing complexity of modern 
 government they seem likely to increase rather than 
 diminish. Examples may be easily thought of. Town 
 boards, boards of health, boards of review, boards of 
 equalization, railroad rate commissions, and public 
 utility commissions all come within this class. They 
 perform very important duties in our scheme of govern- 
 ment, but they are not legislatures or courts. The 
 legislative branch of the government by statute deter- 
 mines the rights, duties and liabilities of persons and 
 corporations under certain conditions of fact, and vary- 
 ing as the facts and conditions change. Manifestly the 
 legislature cannot remain in session and pass a new 
 act upon every change of conditions; but it may and 
 does commit to an administrative board the duty of 
 ascertaining when the facts exist which call into ac- 
 tivity certain provisions of the law, and when condi-
 
 CONSTITUTIONAL DECISIONS 677 
 
 Wisconsin 
 
 tions have changed so as to call into activity other pro- 
 visions. The law is made by the legislature; the facts 
 upon which its operation is dependent are ascertained 
 by the administrative board. While acting within the 
 scope of its duty, or its jurisdiction, as it is sometimes 
 called, such a board may lawfully be endowed with 
 very broad powers, and its conclusions may be given 
 great dignity and force, so that courts may not reverse 
 them unless the proof be clear and satisfactory that 
 they are wrong. M., St. P. & S. S. M. R. Co. v. R. R. 
 Com., 136 Wis. 146; 116 N. W. 905; 17 L. R. A. (N. S.) 
 821. Not only this, but many such boards are created 
 whose decisions of fact honestly made within their 
 jurisdiction are not subject to review in any proceeding. 
 State ex rel v. Chittenden, 112 Wis. 569; 88 N. W. 587; 
 State ex rel. v. Wharton, 117 Wis. 558; 94 N. W. 359; 
 State ex rel. Cook v. Houser, 122 Wis. 534-561; 100 
 N. W. 964; State ex rel. v. Trustees, 138 Wis. 133; 119 
 N. W. 806; 20 L. R. A. (N. S.) 1175. It is important 
 to notice the limitation contained in the last sentence. 
 The decision of such a board may be made conclusive 
 when the board is acting within its jurisdiction, not 
 otherwise. Hence the question of its jurisdiction is 
 one always open to the courts for review. It cannot 
 itself conclusively settle that question, and thus endow 
 itself with power. If no appeal from its conclusions 
 be provided, the question whether it has acted within 
 or exceeded its jurisdiction is always open to the exami- 
 nation and decision of the proper court by writ of cer- 
 tiorari. The instances where the question of jurisdic- 
 tion of such bodies has been examined and decided in 
 certiorari actions are so numerous that it seems un- 
 necessary to cite them. In such cases it is considered
 
 678 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 that clear violations of law in reaching the result reached 
 by the board, such as acting without evidence when 
 evidence is required, or making a decision contrary to 
 all the evidence, constitute jurisdictional error, and will 
 justify reversal of the board's action, as well as the 
 failure to take the proper steps to acquire jurisdiction 
 at the beginning of the proceeding. State ex rel. Augusta 
 v. Losby, 115 Wis. 57; 90 N. W. 188. 
 
 Thus, in the case before us, the jurisdiction of the 
 Industrial Commission to entertain any claim for com- 
 pensation under the act rests upon two facts which 
 must exist, viz.: (1) That both employer and employe" 
 have elected to come under the act; and (2) that the 
 injury was received in service growing out of or inci- 
 dental to the employment as the result of accident, 
 and not of willful misconduct. 
 
 The Industrial Commission must, of course, decide 
 these questions in any case where they are raised; but it 
 cannot decide them conclusively, for they are jurisdic- 
 tional questions on which its right to act at all depends. 
 They must be open to review in some court of compe- 
 tent jurisdiction; otherwise, the parties would be denied 
 due process of law. The tribunal only has authority 
 over those who have voluntarily elected to give it 
 authority, and if it can decide finally that a man has 
 given consent, when he has not, it assumes the func- 
 tions of a court. If the act before us took away from 
 the courts the power to consider these jurisdictional 
 questions, either expressly or by necessary implication, 
 the contention that judicial power had been vested in 
 the commission, contrary to the command of the con- 
 stitution, would be of greater force; but we think that 
 the act does not do this, or attempt to do it. True,
 
 CONSTITUTIONAL DECISIONS 679 
 
 Wisconsin 
 
 it says that the findings of fact made by the commis- 
 sion shall, in the absence of fraud, be conclusive; but 
 it provides for an action in the Circuit Court of Dane 
 County, in which the board's award may be set aside 
 upon either of three grounds, viz.: (1) That the board 
 acted without or in excess of its powers; (2) that the 
 award was procured by fraud; and (3) that the findings 
 of fact do not support the award. 
 
 We regard the expression "without or in excess of 
 its powers" as substantially the equivalent, or at least 
 as inclusive of the expression "without or in excess of 
 its jurisdiction," as those words are used in certiorari 
 actions to review the decisions of administrative officers 
 and bodies. We know of no other construction that 
 can be logically given to them, and it seems to us that 
 they were designedly and advisedly inserted by the 
 framers of the bill to meet the very objection which is 
 now made. With this construction, it is certain that 
 the constitutional powers of the courts have not been 
 invaded, and that no man without his consent can be 
 brought under the law or is deprived of his right to 
 "due process of law" thereby. 
 
 There are some further objections which will be more 
 briefly considered. It is said that, even if it be held 
 that the act is not coercive, still when employer and 
 employ^ consent to come under the law they in effect 
 wholly stipulate away their rights to resort to the courts, 
 and that such agreements are void, citing Fox v. M . F. 
 A. Assn., 96 Wis. 390; 71 N. W. 363. The case cited, 
 however, recognizes the companion principle that agree- 
 ments to arbitrate special matters, such, for instance, 
 as the amount of the loss under an insurance policy 
 (or, as in the present case, the extent of an injury or
 
 680 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 disability, and the like), which do not go to the whole 
 groundwork of the controversy, are universally sus- 
 tained. As we have seen, these special matters are the 
 only matters which the board may conclusively decide 
 under this law. If there be a controversy as to funda- 
 mental rights, namely, whether the parties have con- 
 sented, or as to whether the injuries resulted from 
 willful misconduct, these issues are still open to the 
 court upon the appeal. 
 
 In considering the question as to how far consent 
 may go in matters of this kind, a case not cited in the 
 briefs or mentioned in the oral argument should, we 
 think, be referred to here, viz., the case of Van Slyke v. 
 Insurance Co., 39 Wis. 390; 20 Am. Rep. 50. In this 
 case it appeared that the legislature had passed a law 
 providing that in case of the filing of an affidavit of 
 prejudice against a circuit judge the parties might, 
 if they chose, stipulate that a member of the bar should 
 act as judge and try the case, with all the powers of the 
 regularly elected judge of the court. Acting on this 
 law, the parties in the case agreed that Mr. John J. 
 Cole should try the case, and he did so, rendered judg- 
 ment for the plaintiff, and the defendant appealed. 
 The court held (Chief Justice RYAN writing the opinion) 
 that the constitution having vested all the judicial 
 power of the State in the courts, and provided for the 
 election of judges for such courts, the legislature could 
 confer no judicial power on other officers or persons, 
 nor authorize the parties to an action to do so; hence 
 there was no trial before a court, and no judgment. 
 The question as to whether the defeated party might 
 not be prevented from raising any objection by his 
 voluntary waiver was not considered or mentioned;
 
 CONSTITUTIONAL DECISIONS 681 
 
 Wisconsin 
 
 but in any event the case has no bearing here, and is 
 only mentioned in order to show that it has not been 
 overlooked. It only decides that neither the legislature 
 nor private parties can make a judge out of a private 
 citizen, and endow him with the power to hold a court, 
 contrary to the direct command of the Constitution. 
 As the commission in the present case is not a court, 
 but simply an administrative board, the doctrine laid 
 down in the cases cited has no application. 
 
 Again, it is said that the act compels municipalities 
 to levy taxes for other than public purposes, since all 
 workmen injured in the employ of the public are to be 
 compensated, and thus taxpayers will be deprived of 
 their property without due process of law. We have not 
 been quite able to appreciate the force of this point, 
 and we find no argument upon it in the brief. We shall 
 only say that the manner in which the State or the 
 public shall treat its workmen is peculiarly a matter 
 for the legislature to determine. No one is compelled 
 to work for the public, and, if he does, he takes his 
 situation on the terms which the public gives. We 
 know of no reason why the public, acting by its law- 
 making power, may not provide that its employe's 
 shall have as part of their compensation certain in- 
 demnities in case of accidental injury in the public 
 service. When a law does so provide, the raising of the 
 funds to discharge those indemnities, becomes plainly 
 a proper public purpose. 
 
 Objection is made to those clauses of 2394-16 
 which provide for the giving of notice of claim by mail, 
 and allow testimony to be taken without notice to 
 either party, and the claim is made that this is not 
 "due process of law." Were the commission a court,
 
 682 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 these objections would probably deserve serious con- 
 sideration, especially the latter one. But, as we have 
 seen, the commission is an administrative board merely. 
 It is common knowledge that such boards are frequently 
 given power to investigate and determine facts without 
 notice to the parties of each successive step in the pro- 
 ceedings. The proceedings before such boards are not 
 expected to be as formal and cumbrous as the pro- 
 ceedings of courts; indeed, the greater flexibility which 
 such bodies must possess if they are to discharge their 
 duties seems to demand greater freedom of action. If 
 notice, either actual or constructive, of the commence- 
 ment of the proceedings before such a body be required 
 to be given to the parties interested, and they be given 
 full and free opportunity to be heard and present evi- 
 dence, it is generally held sufficient, even though notice 
 of intermediate steps in the proceeding be not required 
 or given. Schintgen v. La Crosse, 117 Wis. 158; 94 
 N. W. 84. In case of a board like the present, which 
 only acts on the rights of parties who have consented 
 that it may so act, the reason of the rule is far stronger. 
 Some contention is made in the brief that minors 
 cannot be treated in the same manner as adults, and 
 that the provision of the law which declares that a minor 
 who is legally entitled to work shall have the same 
 power of contracting for service as an adult is objec- 
 tionable, because it allows the employer to decide 
 whether the law shall treat his minor employes as adults. 
 The objection seems to us fanciful and elusive. There 
 is no claim that the legislature may not endow minors 
 with the right to make contracts otherwise lawful, and, 
 if this be so, it seems to us to be the end of the discussion. 
 After the minor is so endowed, he becomes for the pur-
 
 CONSTITUTIONAL DECISIONS 683 
 
 Wisconsin 
 
 poses of the act an adult, or at least on the same plane. 
 No adult employe of a private employer can elect to 
 come under the act unless his employer has first elected 
 to do so. So the employer has the power to decide 
 whether any of his employes, infant or adult, shall have 
 the privileges of the act if they continue to work for 
 him. This is practically all there is of the matter, 
 and we see no substantial distinction between the 
 effect of the law upon the adult and its effect upon 
 the minor. 
 
 The foregoing considerations are believed to fully 
 meet and dispose of all the objections made to the law 
 which could reasonably be claimed to be fatal to the 
 entire law if sustained. There are many objections 
 made to single sections or clauses of the law, which we 
 do not find it necessary or advisable to treat at this 
 time. Even should some or all of them be sustained, 
 it is our judgment that the sections or clauses so ques- 
 tioned could not be said to be so far compensations for 
 or inducements to the balance of the law that the entire 
 law must fall. In our judgment it is better to reserve 
 these questions for consideration when an actual case 
 arises which calls for the decision of the court upon 
 them. It is well-nigh impossible for the human mind 
 to call up and contemplate in advance all the considera- 
 tions which ought to be considered in passing upon the 
 validity of the various incidental clauses of a new and 
 complicated law. The concrete case and its actual 
 circumstances and effects are apt to throw much light 
 upon the question and suggest considerations wholly 
 unthought of when viewing the matter abstractly in 
 advance of any actual experience. 
 
 Among these contentions, which we now pass without
 
 684 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 decision, perhaps the most important is the contention 
 that so much of 2394-16 as provides that the board 
 or any member thereof, or any examiner appointed 
 thereby, shall have power to issue subpoenas, obedience 
 to which shall be enforced by contempt proceedings 
 in the Circuit Court. This seems to present a serious 
 question, worthy of careful examination, and we inti- 
 mate no opinion upon it now. 
 
 Other minor contentions, which we do not consider 
 it necessary or advisable to pass upon now, are to the 
 effect that the clauses are void which empower the com- 
 mission (1) to declare and enforce penalties against the 
 employer for failure to perform certain orders of the 
 board made pending hearing (2394-17); (2) to set 
 aside or modify contracts of settlement previously made 
 by the parties ( 2394-15) ; and (3) to regulate the 
 amount of contingent attorney's fees and permit one 
 claimant to make a contract which it may refuse to 
 allow another to make ( 2394-22). 
 
 Before closing, we shall briefly refer to another ques- 
 tion which was not much discussed on the argument, 
 namely, the question whether the law applies or was 
 intended to apply to persons who, like the plaintiffs, 
 are employed under contracts of service made prior 
 to the passage of the law, and which do not expire 
 until some definite date in the future, and, if so, whether 
 the law can apply to them without impairing the obliga- 
 tions of their contracts, and thus violating the constitu- 
 tion. As to the first branch of this question, we think 
 that the language of the act leaves no doubt as to the 
 intention of the legislature. The entire act by express 
 terms was to become effective September 1, 1911. Its 
 provisions are broad, and without express exception,
 
 CONSTITUTIONAL DECISIONS 685 
 
 Wisconsin 
 
 read according to their grammatical meaning, they 
 include all employers and employes, who occupy those 
 relations at the time the law becomes effective. If 
 there was an intention to exclude any from its terms, 
 that intention has been carefully concealed. We con- 
 clude that it was intended to include all employers and 
 employes, whatever the term of service. The question 
 whether the act as so construed affects an existing con- 
 tract of service expiring at some distant period in the 
 future is easily answered in the negative, as it seems to 
 us. Certainly the law does not affect the service to be 
 rendered, or the wages to be paid in any way. Neither 
 the obligation of the workman to faithfully do his work, 
 nor the obligation of the employer to faithfully pay the 
 stipulated wage, nor the remedy in case of breach by 
 either party, is in any way affected. What, then, is 
 affected? Plainly no provision of the contract; but, 
 if the employer elects to come under the law, the em- 
 ploye must choose whether he will come under it or not, 
 and if he does not wish to come under it he may run 
 the risk of being discharged, or if he wishes to retain 
 his employment he may feel compelled to elect to come 
 under the law, and thus lose his right to bring an action 
 at law in case of a personal injury sustained in the em- 
 ployment. 
 
 But all this does not in any way affect the contract 
 of employment. That remains absolutely unimpaired 
 in all its terms. The right to bring an action in the 
 future in case of a possible tort not yet committed is 
 no part of the contract of employment. That right 
 arises out of the relation of employer and employe, 
 and is subject to change by the lawmaking power at 
 any time. The employer does not contract that it
 
 686 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 shall remain intact. There is no vested right in a mere 
 remedy for a hypothetical wrong. At most the law 
 cannot be said to do more than change the remedy for 
 a tort which is yet to happen, and may never happen. 
 The legislature may change the remedies for torts yet 
 to be committed at any time, and such changes cannot 
 be said to make any change in mere contracts of service 
 existing between the parties. This seems very patent. 
 The legislature has at many times within the last two 
 decades passed laws very materially changing the lia- 
 bilities of employers to employes for injuries resulting 
 from the negligent acts of the employer, e. g., the laws 
 requiring the protection of machinery, abolishing as- 
 sumption of risk in such cases, abolishing the coem- 
 ploye" rule as to railway companies, and changing the 
 rules as to contributory negligence. In no case has the 
 claim ever been made that these laws in any way af- 
 fected or impaired existing contracts of service for 
 terms expiring in the future although many cases must 
 doubtless have occurred where those laws were applied 
 to parties who were under such contracts. 
 
 We have now discussed all of the contentions made 
 against the law which we deem entitled to detailed 
 treatment, and we find no serious difficulty in sustain- 
 ing its fundamental and essential provisions. As said 
 in the beginning of this opinion, this law forms the 
 answer of the legislature to a very widespread demand. 
 It is a legislative attempt to reach within constitutional 
 lines some fair solution of a serious problem which 
 other nations, not restricted by written constitutional 
 inhibitions, have solved or partially solved years ago. 
 Doubtless the law will need and will receive changes 
 nd amendments as time shall test its provisions and
 
 CONSTITUTIONAL DECISIONS 687 
 
 Wisconsin 
 
 demonstrate its weak points. It would be unreasonable 
 to expect that a law covering so important a subject 
 along lines not before attempted should be perfect, 
 or very near perfect, upon its first enactment. If ex- 
 perience shall demonstrate that it is practicable and 
 workable, and operates either wholly or in great meas- 
 ure to put an end to that great mass of personal in- 
 jury litigation between employer and employe, with its 
 tremendous waste of money and its unsatisfactory re- 
 sults, which now burdens the courts, the long and pains- 
 taking labors of those legislators and citizens who 
 collaborated in framing it will be fittingly rewarded by 
 a result so greatly to be desired. That result will mean 
 a distinct improvement in our social and economic 
 conditions. 
 
 The effect of our conclusions upon the result in the 
 present case is yet to be considered. The complaint 
 was sustained, and the injunction granted, on the 
 ground apparently that, the law being valid, the plain- 
 tiffs would be greatly injured if their employer elected 
 to become bound by it, because they would be obliged 
 either to break their existing contracts or lose their 
 common-law remedies for their employer's torts. Grant- 
 ing all that plaintiffs claim as to the necessary results 
 of their employer's election, it is very certain that no 
 irreparable injury results to them. If their employer 
 breaks his contract of employment because they decline 
 to accept the new law, they have adequate legal reme- 
 dies for the recovery of damages. If, on the other hand, 
 they elect to come under the law themselves, they* lose 
 no vested or contract right, and are not damaged in 
 the eyes of the law by the change in their remedies for 
 future torts. In either event there is no cause of action
 
 688 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 in equity, and no ground for an injunction. The com- 
 plaint should have been dismissed on the pleadings. 
 
 Judgment reversed, and action remanded, with direc- 
 tions to dismiss the complaint. 
 
 BARNES, J. (concurring) : 
 
 I concur in the opinion of the Chief Justice, except 
 in so far as it is said in effect that our constitutions 
 may mean one thing to-day and something different to- 
 morrow, depending on whether conditions and ideals 
 have in the meantime undergone a change. I regard 
 our constitutions as immutable, except when changed 
 in the manner therein prescribed. Judges, interpreting 
 our fundamental laws, may at one time reach con- 
 clusions different from those which would be reached 
 at another time. This does not argue that the consti- 
 tutional provision under consideration has undergone 
 any change, but demonstrates that judges, being finite 
 beings, made a mistake at one time or the other. No 
 act of the legislature should be declared unconstitu- 
 tional unless it is clearly so. This is elementary. By 
 hewing closely to this line, there is little danger of the 
 courts committing any serious blunders in interpreting 
 our organic laws. If a legislative act, measured by this 
 standard, trenches on the Constitution, it should be 
 held void, regardless of whether or not the provision 
 violated is out of harmony with twentieth-century 
 conditions and ideals. To hold otherwise is to say 
 that the courts may change our fundamental laws. 
 This would be a clear usurpation of power, never vested 
 nor intended to be vested in the courts, and one which 
 was reserved to the people themselves. I am a firm 
 believer in constitutional government. I do not share
 
 CONSTITUTIONAL DECISIONS 689 
 
 Wisconsin 
 
 the belief that our constitutions have become archaic, or 
 that they have outlived their usefulness. If the opinion 
 of the court is intended to mean that it is a doubtful 
 question whether our constitutions should be preserved 
 or thrown hi the " scrap heap," I do not agree with it. 
 
 MARSHALL, J. (concurring) : 
 
 The result, itself, meets with my unqualified approval. 
 Some language in the court's opinion, however, respect- 
 ing the Constitution, I fear will be construed in a differ- 
 ent way than the writer thereof, or any member of the 
 court, intended or would sanction, tending to impair 
 the lofty character of the fundamental law as signifi- 
 cantly maintained by this court. I am not alone in 
 that. Other language appears which does not express 
 my personal views. True, none of such is matter of 
 decision or even judicial dicta, but, if left unchallenged, 
 it is liable to misleadingly indicate a trend of judicial 
 thought here which, I am safe in saying, does not exist. 
 I choose to avoid responsibility therefor. It, seemingly, 
 is my duty to do so. In discharging that duty I wish 
 not to take from the dignity of the court's able opinion 
 on the vital questions presented for solution. I do not 
 understand they involved any new constitutional, or 
 any, question of difficulty, giving rise, under any cir- 
 cumstances, to desire a broader fundamental spirit 
 than has been long firmly entrenched in the jurispru- 
 dence of this country. 
 
 The law approved is a very mild piece of legislation. 
 While I would not suggest it is too moderate for now 
 for that is not within my province yet I would not 
 indicate that the legislature responded as fully as it 
 might to the need for a system as directly as practicable, 
 44
 
 690 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 laying the personal injury burdens of production upon 
 the things produced where they belong, as should have 
 been efficiently recognized long ago, and would have 
 been had the lawmaking power appreciated that it is 
 its province, not that of courts, to cure infirmity in the 
 law. If criticisms, unjustly and freely directed toward 
 the latter and the human instrumentalities thereof, 
 merely because of their fidelity to duty to maintain the 
 laws as given, had been turned upon the former for 
 failure to better conserve human happiness in the in- 
 dustrial field in the light of twentieth-century condi- 
 tions, untold suffering might have been prevented, 
 which only the people's representatives could prevent. 
 Tardy recognition of such duty casts no reflection upon 
 legislative actors of to-day. Who can say but that 
 they would have had the same ideals as now, and 
 effected the same results long ago if opportunity had 
 been offered them to do so? It has been, in the past, 
 far easier to criticise a power which was helpless to 
 supply a remedy, than to suggest one or move legisla- 
 tive power to adopt one. 
 
 I am constrained to write the foregoing to give de- 
 served credit to the patient, earnest, efficient labor of 
 the lawmakers who placed the enactment in question 
 upon the statute book of this State. It would give them 
 too little credit to record, merely, that they bowed 
 to public demand, and too little credit to this court to 
 leave room for the thought that it has been influenced 
 by any such demand to give the Constitution any new 
 shade of meaning to sustain the enactment, or that it 
 would change, or arrogate to itself power or disposition 
 to change, fundamentals in any sense, by judicial in- 
 terpretation.
 
 CONSTITUTIONAL DECISIONS 691 
 
 Wisconsin 
 
 As to the subject of the enactment, advanced thinkers 
 in economics, law and legislation have been at the front 
 and the public has been slow to follow. It took the 
 industrious, able, patient, tactful legislative committee 
 over two years of activity, to educate the people up to 
 willingness to accept on trial the mild law before us. 
 Opposition had to be overcome by education on all 
 sides. The legislature responded, not so much to a 
 general demand, as to a constitutional command, to 
 conserve, in the light of the present, the public welfare. 
 
 The remarks in the court's opinion which may suggest 
 to some that a different meaning is to be read out of 
 the Constitution now than formerly; that it may have 
 meant one thing when framed and later another, and 
 now be held differently, according to judicial interpre- 
 tation to meet social necessities as recognized by human 
 instrumentalities in the particular environment prob- 
 ably was not so intended, but I sense danger of a con- 
 trary impression going out. Such ability to bend the 
 fundamental law in the name of judicial interpreta- 
 tion the idea that an eighteenth-century construction 
 for an eighteenth-century condition may not, and at the 
 hands of the court does not have to, fit a twentieth- 
 century condition has been advanced by some, but 
 not, significantly at least, by any court. On the con- 
 trary, it has met with universal condemnation. That 
 it is wrong, every man of eminence that has ever written 
 upon the subject in the past, as well as the very nature 
 of the case and the very logic and limitations of judicial 
 interpretation, bear witness. The fertile method of 
 dealing with the Constitution has been characterized 
 as one which has "furnished a mode of argument which 
 would on the one hand leave the Constitution crippled
 
 692 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 and inanimate, or on the other give it an extent of 
 elasticity subversive of all rational boundaries." Story, 
 Constitution, 389. 
 
 Manifestly, there can be but one right interpretation 
 or construction of the Constitution. It is said to have 
 been constructed of general declarations, so that, in 
 letter and spirit, it might abide indefinitely and would 
 have to so abide, dealing with all conditions and all 
 ages, except as amended in the manner therein specified. 
 Considerately with that, there can be but one view- 
 point for interpretation, and that is the one from which 
 the framers of the system builded. That is unmis- 
 takably indicated in Marbury v. Madison, 1 Cranch, 
 137; 2 L. Ed. 60; Martin v. Hunter, I Wheat. 304; 4 L. 
 Ed. 97. 
 
 We speak of the Constitution in a general sense 
 the American system, commencing with the Federal 
 model and including the state constitutions framed in 
 harmony therewith. In all writings thereon, from Chief 
 Justice MARSHALL to date, the idea that it cannot be 
 properly judicially changed to suit the notions of the 
 times, and that there will appear little need therefor 
 when the real nature thereof is comprehended, is made 
 prominent. It was that idea, largely, which moved one 
 eminent writer to speak of it as the "greatest single 
 achievement of the eighteenth century," and another 
 to characterize it as the "most wonderful work ever 
 struck off at a given time by the brain and purpose of 
 man." Truly, it cannot be said of that which was so 
 unequaled in the eighteenth century, and, we may 
 well add, was unequaled in the nineteenth and has 
 been since, that it can take the cast, so to speak, from 
 time to time of its environment as judicial instrumen-
 
 CONSTITUTIONAL DECISIONS 693 
 
 Wisconsin 
 
 talities may view it through the vista of conditions in 
 prcesenti. All history says no. The very inconsistency 
 of the contrary says no. The absence of any necessity 
 for, and the destructive danger of, any such quality, 
 say no. 
 
 A new remedy for a new condition within the bound- 
 aries of reason is within legitimate police authority. 
 Who could wish more? How could more exist and 
 human liberty natural, inherent rights be safe? 
 Would it not be well to recur to the classic rule for 
 testing legitimacy of legislative enactments, given by 
 the most eminent judicial expounder of the Constitu- 
 tion of which the history of American jurisprudence 
 bears record : 
 
 "Let the end be legitimate, let it be within the scope 
 of the Constitution, and all means which are appropriate, 
 which are plainly adapted to that end, which are not 
 prohibited, but consist with the letter and spirit of the 
 Constitution, are constitutional." McCulloch v. Mary- 
 land, 4 Wheat. 316, 421; 4 L. Ed. 579. 
 
 With that and the significance of the declared purpose 
 and central thought of the Constitution in mind, much 
 of the supposed difficulty which has stimulated sugges- 
 tions of competency to, and necessity for, bending it 
 by a usurpations method of interpretation, will dis- 
 appear. 
 
 How are we to determine when the purpose of a law, 
 in the field of police power, and unaffected by any 
 express prohibition, is legitimate? It seems the answer 
 is easy. Look first to the purpose of the Constitution, 
 found in the declaration, "Grateful to Almighty God 
 for our freedom, in order to secure its blessings, form a 
 more perfect union, insure domestic tranquillity and
 
 694 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 promote the general welfare" we "do establish this 
 Constitution." Then to the central thought the very 
 superstructure upon which the whole was builded: 
 "All men are born equally free and independent and 
 have certain inherent rights, among those are life, 
 liberty and the pursuit of happiness." There is voiced 
 a broad spirit, covering as this court has, in effect, many 
 times said, a field as limitless as are human needs. The 
 language was not used for mere rhetorical ornamenta- 
 tion or effect, but to suggest the permissible scope of 
 legislation in the zone of general welfare, its extent and 
 its limitations. Durkee v. Janesville, 28 Wis. 464; 9 Am. 
 Rep. 500; State, etc., v. Kreutzberg, 114 Wis. 530; 90 
 N. W. 1098; 58 L. R. A. 748; 91 Am. St. Rep. 934; State, 
 etc., v. Redmon, 134 Wis. 89; 114 N. W. 137; 14 L. R. A. 
 (N. S.) 229; 126 Am. St. Rep. 1003; Bonnett v. V oilier, 
 136 Wis. 193; 116 N. W. 885; 17 L. R. A. (N. S.) 486; 128 
 Am. St. Rep. 1061. 
 
 So here, as it seems, the initial question was this : 
 Is the purpose of the law legitimate, within the broad 
 dominating spirit mentioned? The answer must be 
 yes, as the manifest purpose is to promote every element 
 of the central thought of the Constitution. Anything 
 fairly within that has always been and must, necessarily 
 always, be held legitimate. Keeping in mind that in 
 the selection of means the legislature has a very broad 
 comprehensive field in which to freely make a choice, 
 the next question is, are the means contemplated rea- 
 sonably appropriate to the end to be attained? Not are 
 they the best means, but are they proper means, in 
 that they are not within any express prohibition and 
 tend to conserve rather than to destroy? All must 
 agree in the affirmative on that in harmony with the
 
 CONSTITUTIONAL DECISIONS 695 
 
 Wisconsin 
 
 best thought of all the more civilized nations of Europe. 
 The difficulty here has been, want of appreciation of 
 the great economic truth, that personal injury losses 
 incident to industrial pursuits, as certainly as wages, 
 are a part of the cost of production of those things 
 essential to or proper for human consumption, and the 
 more direct they are incorporated therein, the less the 
 enhancement of cost and the better for all. 
 
 True, the old remedies for losses mentioned have 
 been inefficient and wasteful. They are, economically 
 speaking, unscientific and have always been. It is 
 more apparent now than formerly by reason of greater 
 and more numerous modern activities and methods, 
 that is all. In truth, the infirmity from an economic 
 standpoint, and from the standpoint of man's duty to 
 his fellow men, has always existed, though the quantum 
 of regrettable results and useless waste has greatly 
 increased by the multiplication of human activities 
 and physical instrumentalities. 
 
 So it will be seen, I think, that while particular 
 means may be reasonably appropriate to a legitimate 
 purpose under some conditions characterizing a par- 
 ticular period, and not have been at a prior time, no 
 change in the Constitution is involved in remedying the 
 misfit. The end being proper the legitimacy of means 
 may be dependable upon conditions, the question turn- 
 ing more on matter of fact than anything else. The 
 change of mere means does not require a fundamental 
 change, so long as legitimacy of end and reasonable 
 appropriateness of means shall be kept efficiently in 
 view. 
 
 Want of appreciation, in my judgment, of the Con- 
 stitution from the viewpoint suggested, has led some to
 
 696 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 advocate judicial changes to meet new conditions, while 
 others have insisted that many amendments, made in 
 the prescribed way, practically substituting a new sys- 
 tem for that of the fathers, are necessary or advisable, 
 and still others have maintained the broad liberal view 
 suggested, which was early entrenched in the juris- 
 prudence of this country by the judicial writings of 
 Chief Justice JOHN MARSHALL. That idea renders 
 changes of any kind unnecessary to legislative compe- 
 tency to legislate to any extent which reasonably pro- 
 motes a constitutional object. Anything further would 
 destroy, or tend to destroy, instead of promote public 
 welfare. Such 'idea is the safe one and the right one 
 from the viewpoint, I think, of the fathers. It is the 
 one sturdily maintained by this court. It is the one I 
 feel competent to say, all members of this court would 
 now maintain and that nothing in its opinion should 
 be otherwise taken. 
 
 If the Constitution is to efficiently endure, the idea 
 that it is capable of being resquared, from time to time, 
 to fit new legislative or judicial notions of necessities 
 in prcesenti, instead of new legislation being tested by 
 it, must be combated whenever and wherever advanced, 
 and wrong impressions in regard to the matter carefully 
 guarded against. To even, significantly, speak of mak- 
 ing the Constitution adaptable to new conditions by 
 means of interpretation, when the selection of new 
 and constitutional means, adaptable to such conditions, 
 is meant, is liable to confuse and weaken that high 
 regard all should have for the fundamental law as a 
 broad, definite, certain, comprehensive, unvarying and 
 unvariable system, other than by the means therein 
 pointed out. Dark will be the day, if that day will
 
 CONSTITUTIONAL DECISIONS 697 
 
 Wisconsin 
 
 ever come, for the people of this country, and dark to 
 the people of all countries whose attention is directed 
 here for lessons in constitutional government, when 
 our system shall not be held up by the courts as speak- 
 ing the same at one time as at another, except in so far 
 as changes shall be made in the particular way. That 
 is the doctrine of Marbury v. Madison, 1 Cranch, 137; 
 2 L. Ed. 60. No one can read that great exposition 
 of our system without appreciating how illogical it is 
 to speak of interpretation as an instrumentality for 
 giving, from time to time, a different cast to the funda- 
 mental law. The whole spirit of the court's logic con- 
 demns such reasoning as heresy. Note the significance 
 of this: "The exercise of this original right" to make 
 a system of government "is a very great exertion, nor 
 can it, nor ought it to be frequently repeated. The 
 principles therefore, so established, are deemed funda- 
 mental, and as the authority from which they proceed 
 is supreme, and can seldom act, they are designed to be 
 permanent." In that connection the court added, in 
 unanswerable logic, that the Constitution is not only 
 the paramount law, but is absolutely unchangeable by 
 ordinary means; that laws adaptable to it are legitimate, 
 and laws so called, not so adaptable, are not laws at all. 
 It was designed to govern the legislature and the courts 
 as well. That conception is of something high above 
 either legislatures or courts, to vary it. How can that 
 be done by indirection, miscalled interpretation and 
 construction a method of rounding a syllogism with 
 a conclusion based on false premises. Interpretation 
 of that sort would enable courts to evade and render 
 useless the most carefully drawn enactments whether 
 of fundamental or subsidiary law.
 
 698 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 So, in short, I think the law in question is a reasonably 
 appropriate means to effect a constitutional purpose; 
 that the constitution needs no bending whatever in order 
 to sustain it in its essential features, and none would 
 be proper if the contrary were the case. 
 
 The foregoing I can but regard out of harmony with 
 this, in its letter: " Changed social, economic and 
 governmental conditions and ideals of the time, as 
 well as the problems the changes have produced, must 
 largely enter into the consideration and become in- 
 fluential factors in the settlement of problems of con- 
 struction and interpretation" so far as it is pregnant 
 with the thought that the fundamental law is judicially 
 changeable. The words ' ' problems " of " construction ' ' 
 and "interpretation" I think were unfortunately used, 
 if the thought was merely of problems of whether new 
 enactments to cope with new conditions are within or 
 without the legitimate field of legislative activity, hav- 
 ing regard to appropriateness of means to effect a con- 
 stitutional end. The latter might be, as I have sug- 
 gested, at one time and not a half century theretofore, 
 because changed conditions may render an end legiti- 
 mate, within the unchangeable scope of the funda- 
 mental law, which earlier was not, or the selected means 
 to effect that end might be reasonably appropriate at 
 one time, though not so a century, more or less, there- 
 tofore. 
 
 Why treat judicial interpretation of law as a process 
 of following changing ideals, social problems and ideas, 
 since its sole office is to solve uncertainties as to the 
 intent at the time of the enactment? Interpretation 
 commences where begins uncertainty obscurity as to 
 the meaning the lawgivers purposed putting into the
 
 CONSTITUTIONAL DECISIONS 699 
 
 Wisconsin 
 
 enactment and succeeded, discoverably, in expressing, 
 literally or inferentially. In short, the gist of the mat- 
 ter is the intent when the law was made, not what one 
 can make the language say in a different environment 
 from that of its origin to accomplish a desired purpose. 
 No bending is permissible for the latter purpose, but 
 for the former the very letter may have to give way to 
 the spirit. State, etc., v. Ryan, 99 Wis. 123; 74 N. W. 
 544; State, etc., v. R. R. Comm., 137 Wis. 80; 117 N. W. 
 846; State, etc., v. Phelps, 144 Wis. 1; 128 N. W. 1041. 
 The expounder is to "look to the whole and every part 
 of the law, to the intent apparent from the whole, to 
 the subject-matter, to the effects and consequences, to 
 the reason and spirit, and thereby ascertain the ruling 
 idea present" in the lawgiving body's mind at the 
 time of the enactment, and then, so far as such idea can 
 reasonably be spelled out of the enactment, give effect 
 to it though it violates the letter. Wisconsin Industrial 
 School for Girls v. Clark County, 103 Wis. 651, 659; 
 79 N. W. 422. 
 
 True, "the Constitution is a very human document" 
 in the sense that it is a collection of words recognizing, 
 characterizing and guaranteeing the natural rights of 
 man all that are essential to public welfare in the social 
 state, but not so in the sense of creating such rights. 
 The right to life, to liberty, to happiness, to equality 
 one with another, are not of human creation. They 
 are of divine origin, though by human instrumentality 
 some one or more of them might be taken away. It is 
 to prevent that, in the main, the Constitution was 
 framed. So anything not expressly prohibited which 
 reasonably conserves those God-given rights, is within 
 its saving grace. Anything which clearly or materially
 
 700 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 impairs or destroys any one of them is condemned by 
 it. It were better to inculcate the idea that it is not 
 subject to change with the change of times and condi- 
 tions, though such new conditions, by logical process 
 may well be the deciding factor as to whether legislative 
 means, resorted to for a particular end, are within or 
 without the unchangeable constitutional principles. 
 Manifestly it must have been the latter conception 
 of the Constitution which so inspired statesmen of the 
 first century of the republic with veneration for it. 
 That might well have inspired Webster to love it, 'to 
 have a profound passion for it,' to 'cherish it day and 
 night,' to 'live on its healthful saving influence,' and 
 to ' trust never, never to cease to heed it until ' he should 
 ' go to the grave of his fathers, ' to ' earnestly desire not 
 to outlive it." 1 It is good to draw inspiration from 
 those lofty sentiments. I would not by word or deed, 
 to any extent give rise to the thought that the ancient 
 dignity of our system, in judicial conception here, has 
 changed. 
 
 At no period has appreciation of the great work of the 
 fathers been more important than now. We need to sit 
 anew, in thought, at their feet revive knowledge that 
 the result was wrought by a body of men representa- 
 tives of the great seats of learning of the English- 
 speaking race of two hemispheres, and otherwise men 
 of broad experience, many of whom had been students 
 of all Federal governments of all prior ages in prepara- 
 tion for the special task as the historian declared, "the 
 goodliest fellowship of lawgivers whereof this world has 
 record" a body dominated by specialists inspired "by 
 ennobling love for their fellow men" and the though t 
 that they wrought, not for their age alone, but for the
 
 CONSTITUTIONAL DECISIONS 701 
 
 Wisconsin 
 
 ages to come, and, so, sought to avoid the infirmities 
 of previous systems of government by the people, by 
 carefully providing that no change in letter or spirit 
 should occur except in a particular and most deliber- 
 ate and conservative way. 
 
 Appreciating that the report of this case will be widely 
 read and commented upon within and without the 
 field of judicial administration, I particularly desire to 
 avoid creation of, or administering to, false impressions 
 respecting the dignity of the abolished defenses and 
 the responsibility of courts for their existence. 
 
 True, such defenses are of judicial origin, but not as 
 that term, without explanation, might be understood 
 by laymen. They are so in the same sense that a large 
 part of the law, upon which rights and remedies depend, 
 is of such creation. Nevertheless, all such is as much 
 the law of this State, to be respected by the courts, as 
 any part of the Constitution or any act of the legislature, 
 It did not originate with the courts of our age or cen- 
 tury. It has not been within the competency of this 
 court at any time to change it. The defenses in question 
 became a part of the law of the mother country through 
 its judicial administration long before the Revolution. 
 The law of such country, so far as adaptable to our 
 conditions here, was adopted when our independent 
 government was formed, and became the common law 
 of this country. It was in full force in the territory of 
 Wisconsin when our State was admitted into the Union. 
 All officers were sworn to maintain it that part relat- 
 ing to the law of negligence as well as the rest and 
 were bound to do so with as much fidelity as if incor- 
 porated into the written law. When the Constitution 
 was adopted the unwritten law was substantially given
 
 I 
 
 702 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 the cast of written law and as such firmly entrenched 
 as fundamental, subject to legislative change, by 13, 
 article 14, of the Constitution in these words: "Such 
 parts of the common law as are now in force in the 
 Territory of Wisconsin, not inconsistent with this Con- 
 stitution, shall be and continue part of the law of this 
 State until altered or suspended by the legislature." 
 
 Every judge of every court has been sworn to main- 
 tain the common law as thus intrenched in our system 
 till changed by the legislature. So from the viewpoint 
 of the present, the law of negligence including the de- 
 fenses in question does not lose in dignity when com- 
 pared with an act of the legislature, because ages ago 
 it had judicial origin. It was, as we have seen, with 
 deliberation adopted by the people when they or- 
 ganized our state government. No court in our time 
 has had competency, we repeat, to change or create or 
 destroy in that field. Power in that regard was expressly 
 reserved to the legislature. It has been free to act in the 
 matter, within such reasonable limits as not to violate 
 guaranteed rights, for over sixty years, while the courts 
 have been powerless to do more than to determine, 
 to the best of their ability, the law as fundamentally 
 adopted, or subsequently changed, by the lawmaking 
 power, and apply it. 
 
 Under the power reserved to the legislature as afore- 
 said, it was competent for it to abolish the defenses in 
 question, and to do it in such a way as to create induce- 
 ment for employers to, voluntarily, become parties to 
 the new system designed to better conserve human 
 life and human happiness. Call the method "consti- 
 tutional coercion," if thought best. That casts no dis- 
 credit upon the method, for where coercion is necessary
 
 CONSTITUTIONAL DECISIONS 703 
 
 Washington 
 
 coercion is legitimate, no guaranteed rights being in- 
 fringed upon. 
 
 It is needless to add that I heartily endorse all said 
 in the court's opinion regarding the importance of the 
 legislation which has received approval. May it be 
 the beginning of a well rounded out constitutional 
 system making every one who consumes any product 
 of labor for hire pay his proportionate amount of the 
 cost of the creation representing the personal injury 
 misfortunes of those whose hands have enabled him 
 to secure the objects of human desire, thus minimizing 
 the sufferings which are the natural incidents of in- 
 dustry and should be borne, so far as they represent 
 pecuniary sacrifice, by the mass of mankind whose de- 
 sires are administered to by such industry. 
 
 STATE EX REL. DAVIS SMITH Co. v. C. W. CLAUSEN AS 
 STATE AUDITOR 
 
 (00 Wash. 000; 117 Pac. Rep. 1101) 
 
 Constitutional law; Workmen's Compensation Act; liability 
 without fault; police power; invalidity of portion of act as af- 
 fecting entire statute; classifying industries; class legislation; 
 uniform taxation ; trial by jury. 
 
 1. The test of the validity of a law which creates a liability 
 without fault is not found in the inquiry: Does it do an 
 objectionable thing? But is found rather in the inquiry: 
 Is there no reasonable ground to believe that public safety, 
 health or general welfare is promoted thereby? 
 
 2. The legislature cannot declare a particular industry com- 
 monly engaged in by the people, to be unlawful, which
 
 704 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 under all circumstances, must necessarily be harmless and 
 innocent; but it can regulate and control and prohibit any 
 industry, however innocent it may have been at its incep- 
 tion, whenever it becomes a menace to the employes en- 
 gaged in it, the people surrounding it, or to any consider- 
 able number of people at large, no matter from whatsoever 
 cause the menace may arise. This it does under the police 
 power. 
 
 3. As the act in question has a reasonable relation to the. 
 protection of the public health, morals, safety and welfare, 
 it will not be set aside because it may incidentally deprive 
 some person of his property without fault or take the 
 property of one person to pay the obligations of another. 
 
 4. That portion of the act which permits certain sections to 
 stand even though others are declared to be invalid does 
 not render the act unconstitutional. 
 
 5. Classifying industries for the purpose of collecting pre- 
 miums and distributing compensation does not render the 
 act invalid as class legislation. 
 
 6. The act is not invalid as creating taxation which is not 
 uniform. 
 
 7. The statute is not unconstitutional as infringing the right 
 of trial by jury. 
 
 En Bane. Original proceeding by the State, on the 
 relation of the Davis-Smith Company against C. W. 
 Clausen, as state auditor, to compel the issuance of a 
 warrant on the state treasurer in payment of an obliga- 
 tion incurred by the Industrial Insurance Department. 
 Writ issued. 
 
 W. V. Tanner (Harold Preston and Geo. A. Lee, of 
 counsel), for plaintiff. 
 
 Denman & Fishburne (Graves, Krizer & Graves, of 
 counsel), for defendant.
 
 CONSTITUTIONAL DECISIONS 705 
 
 Washington 
 
 FULLERTON, J. I 
 
 This is an original proceeding in mandamus, brought 
 by the relator to compel the state auditor to issue a 
 warrant on the state treasurer in payment of an obli- 
 gation incurred by the industrial insurance department. 
 The application was in the form required by the statute 
 governing the practice in such cases, and sets forth 
 facts which, on their face, show that the applicant is 
 entitled to the warrant demanded. The auditor de- 
 murred generally to the application, and at the hearing 
 his counsel argued that the act purporting to authorize 
 the expenditure for which the warrant was demanded 
 was unconstitutional and void. 
 
 It was suggested at the argument that the question 
 of the constitutionality of the act could not be raised 
 by the auditor in this form of proceeding, but to do so 
 is in accord with the practice in this State. In State 
 ex rel. Olmstead v. Mudgett, 21 Wash. 99; 57 Pac. 351, 
 the relator sought by mandamus to compel the county 
 treasurer of Spokane to collect an assessment levied 
 to pay the cost of a street improvement, and, on the 
 demurrer of the treasurer to the application for the 
 writ, we inquired into the constitutionality of the act 
 authorizing the assessment to be made. To the same 
 effect are State ex rel. Port Townsend v. Clausen, 40 
 Wash. 95; 82 Pac. 187, and Hindman v. Boyd, 42 Wash. 
 17; 84 Pac. 609. In the latter case it was acknowledged 
 that the authorities on the question were in conflict; 
 but it was said that the preferable rule was with the 
 cases holding that the question could be thus raised. 
 On principle the ruling seems to be sound. If it be true 
 that an act of the legislature authorizing the disburse- 
 ment of public money is unconstitutional, to inquire 
 45
 
 706 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 into it on the objection of an officer having in charge 
 such disbursement may save an expenditure that would 
 be otherwise lost to the State were the court to await 
 the suggestion of the question by some private litigant 
 injuriously affected by the Act. There is no merit in 
 the objection that the officer is without interest in the 
 proceeding. He is charged with the duty of conserving 
 the public funds, and consequently must be held to 
 have an interest in any proceeding which directly tends 
 to that end. 
 
 The act thought to be unconstitutional by the auditor 
 is the act of the legislature of March 14, 1911, commonly 
 known as the "Workmen's Compensation Act." Laws 
 of 1911, p. 345. The act is of too great length to be set 
 forth here in full ; but the following epitome of its several 
 provisions will give an understanding of its salient 
 features, and of the questions involved on this hearing : 
 
 Section 1 contains a declaration of the policy of the 
 act. It recites that the common-law system governing 
 remedies of workmen against employers for injuries 
 received in hazardous employments are inconsistent 
 with modern industrial conditions; that in practice 
 such remedies have proven economically unwise and 
 unfair; that their administration has produced the re- 
 sult that little of the cost thereof to the employer has 
 reached the workmen, and that little, only at a great 
 expense to the public; that the remedy to the indi- 
 vidual workman is uncertain, slow and inadequate; 
 that injuries in such employments formerly occasional 
 have become frequent and inevitable; that the welfare 
 of the State depends upon its industries, and even 
 more upon the welfare of its wage workers. And it 
 thereupon declares that the State of Washington, exer-
 
 CONSTITUTIONAL DECISIONS 707 
 
 Washington 
 
 cising its sovereign powers, withdraws all phases of 
 the premises from private controversies and provides 
 sure and certain relief for workmen injured in extra- 
 hazardous work, and their families and dependents, 
 regardless of questions of fault, to the exclusion of 
 "every other remedy, proceeding or compensation, 
 except as otherwise provided in this act." It thereupon 
 abolishes civil actions and civil causes of action for 
 personal injuries incurred in extra-hazardous employ- 
 ments, and the jurisdiction of the courts thereon, ex- 
 cept as in the act provided. 
 
 Section 2 enumerates what the legislature deems 
 extra-hazardous employments. It is provided, how- 
 ever, that if there be found to be, or if there subse- 
 quently arise, any hazardous employments not enu- 
 merated, the same shall nevertheless come within the 
 provisions of the act, and the rate of contribution to 
 the accident fund to be exacted from such employments 
 shall be fixed by the department therein created until 
 the legislature itself shall have acted thereon. The 
 enumeration includes all classes of business and employ- 
 ments in which machinery is employed, whether con- 
 ducted by corporations or by individuals, and whether 
 they are affected with a public interest or are purely 
 of a private nature. 
 
 Section 3 defines certain of the words and terms 
 used in the act. Concerning the word " workman" is 
 the following: "Workman means every person in this 
 State, who, after September 30, 1911, is engaged in 
 the employment of an employer carrying on or con- 
 ducting any of the industries scheduled or classified 
 in 4, whether by way of manual labor or otherwise, 
 and whether upon the premises or at the plant, or, he
 
 70S BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 being in the course of his employment, away from the 
 plant of his employer: Provided, however, that if the 
 injury to a workman occurring away from the plant of 
 his employer is due to the negligence or wrong of an- 
 other not in the same employ, the injured workman, or 
 if death result from the injury, his widow, children, or 
 dependents, as the case may be, shall elect whether to 
 take under this act or seek a remedy against such other, 
 such election to be in advance of any suit under this 
 section; and if he take under this act, the cause of action 
 against such other shall be assigned to the State for 
 the benefit of the accident fund; if the other choice is 
 made, the accident fund shall contribute only the de- 
 ficiency, if any, between the amount of recovery against 
 such third person actually collected, and the compen- 
 sation provided or estimated by this act for such case. 
 Any such cause of action assigned to the State may 
 be prosecuted, or compromised by the department, in 
 its discretion. Any compromise by the workman of 
 any such suit, which would leave a deficiency to be 
 made good out of the accident fund, may be made only 
 with the written approval of the department. Any 
 individual employer or any member or officer of any 
 corporate employer who shall be carried upon the pay 
 roll at a salary or wage not less than the average salary 
 or wage named in such pay roll and who shall be in- 
 jured, shall be entitled to the benefit of this act as and 
 under the same circumstances as and subject to the 
 same obligations as a workman." 
 
 Section 4 contains a schedule of contributions. It 
 recites that, in so much as industry should bear the 
 greater proportion of the burden of the costs of its 
 accidents, each employer shall, prior to January 15 of
 
 CONSTITUTIONAL DECISIONS 709 
 
 Washington 
 
 each year, pay into the state treasury, in accordance 
 with a schedule provided, a sum equal to a percentage 
 of his total pay roll of that year. Then follows a classi- 
 fication of the different industries and the rate per 
 centum each several class shall be required to pay; the 
 amounts varying as the legislature deemed the risk of 
 injury therefrom varied, and the greater hazard con- 
 tributing the larger percentage. The fund created is 
 termed the " accident fund," and it is provided that 
 it shall be devoted exclusively to the purposes specified 
 in the act. A scheme is provided for replenishing the 
 fund in case an amount collected shall be insufficient 
 to meet the demands upon it. It is also provided: 
 "If a single establishment or work comprises several 
 occupations listed in this section in different risk classes, 
 the premium shall be computed according to the pay 
 roll of each occupation if clearly separable; otherwise 
 an average rate of premium shall be charged for the 
 entire establishment, taking into consideration the 
 number of employes and the relative hazards. If an 
 employer besides employing workmen in extrahazard- 
 ous employment shall also employ workmen in employ- 
 ments not extrahazardous the provisions of this act 
 shall apply only to the extrahazardous departments 
 and employments and the workmen employed therein. 
 In computing the pay roll the entire compensation re- 
 ceived by every workman employed in extrahazardous 
 employment shall be included, whether it be in form 
 of salary, wage, piecework, overtime, or any allowance 
 in the way of profit-sharing, premium or otherwise, and 
 whether payable in money, board, or otherwise." 
 
 Section 5 contains the compensation schedule. It 
 provides that each workman who shall be injured,
 
 710 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 whether upon the premises or at the plant, or being in 
 the course of his employment away from the plant of 
 his employer, or his family or dependents in case of the 
 death of the workman, shall receive out of the accident 
 fund compensation in accordance with the schedule 
 provided, and except as in the act otherwise provided 
 such compensation shall be in lieu of any and all rights 
 of action whatsoever against any person whomsoever. 
 This schedule provides for monthly payments to de- 
 pendents of the workman in case the injury results in 
 death, varying according to their number and degree 
 of relationship, and to the workman direct in case the 
 injury results only in disability; the amount varying 
 according to the proportion the extent of such dis- 
 ability bears to a fixed maximum. 
 
 Section 6 relates to intentional injuries and the status 
 of minors engaged in hazardous employments. It is 
 provided that, if injury or death results to a workman 
 from the deliberate intention of the workman himself 
 to produce such injury or death, no compensation shall 
 be made either to the workman or his dependents out 
 of the accident fund. If, however, the injury or death 
 results to a workman from the deliberate intention of 
 his employer, such workman, or, in case of his death, a 
 widow, widower, child, or dependent of the workman, 
 shall have the privilege to take under the act, and shall 
 also have a cause of action against the employer, as if 
 the act had not been enacted, for any excess of damage 
 over the amount received, if receivable under the act. 
 A minor working at an age legally permitted under the 
 laws of the State shall be deemed sui juris for the pur- 
 poses of the act, and no other person shall have any 
 cause of action or right to compensation for his injury.
 
 CONSTITUTIONAL DECISIONS 711 
 
 Washington 
 
 Section 7 provides for converting the monthly pay- 
 ments into corresponding lump sums according to the 
 American mortality tables. Section 8 provides penalties 
 for defaulting employers. Section 9 relates to injuries 
 caused by the absence of safeguards required by statute. 
 
 Section 10 exempts awards made under it from assign- 
 ment, or from seizure under legal proceedings. 
 
 Section 11 provides that no employer of workmen 
 shall exempt himself from the burden or waive the 
 benefits of the act by any contract, agreement, rule, or 
 regulation, and that any such contract, agreement, rule 
 or regulation shall be pro tanto void. 
 
 Section 12 relates to the filing of claims; 13 to medi- 
 cal examinations; 14 to the notice required of the 
 happening of accidents; 15 to an inspection of any 
 employer's books. Section 16 provides a penalty for 
 misrepresentation as to the amount of the pay roll. 
 Section 17 relates to public contract work. Section 18 
 contains provisions relating to interstate and intrastate 
 commerce, and 19 provides that the provisions of the 
 act may be adopted by employers and employes engaged 
 in nonhazardous employments. 
 
 Section 20 relates to court reviews. It provides that 
 any employer, workman, beneficiary, or person feeling 
 aggrieved at any decision of the department created 
 to administer the terms of the act affecting his interest 
 may have the same reviewed by a proceeding for that 
 purpose in the nature of an appeal, initiated in the 
 Superior Court of the county of his residence, in so far 
 as such decision rests upon questions of fact or of the 
 proper application of the provisions of the act; "it 
 being the intent that matters resting in the discretion 
 of the department shall not be subject to review." It
 
 712 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 is provided further that the appeal shall be informal 
 and summary. No bond shall be required, and any 
 decision of the Superior Court may be referred to the 
 Supreme Court for review according to existing laws 
 applicable to other civil causes. The calling of a jury 
 is within the discretion of the court, except that, in 
 cases occurring under 9, 15 and 16, of the act, each 
 party shall be entitled to a trial by jury on demand. 
 
 Section 21 vests the administration of the act in a 
 department to be known as the " Industrial Insurance 
 Department," to consist of three commissioners to be 
 appointed by the Governor. It is provided that a 
 decision of any question arising under the act concurred 
 in by two commissioners shall be deemed the decision 
 of the department, and each member thereof is given 
 power to issue subpoenas requiring the attendance of 
 witnesses and the production of books and documents. 
 
 Section 22 relates to the salary of the commissioners, 
 and 23 to the appointment of deputies and assistants. 
 Section 24 further defines the duties of the commis- 
 sioners in relation to the administration of the act. 
 Section 25 relates to medical examinations, and 26 
 to the manner in which funds appropriated to the use 
 of the department shall be disbursed. 
 
 Section 27 provides: "If any employer shall be adjudi- 
 cated to be outside the lawful scope of this act, the act 
 shall not apply to him or his workman, or if any work- 
 man shall be adjudicated to be outside the lawful scope 
 of this act because of remoteness of his work from the 
 hazard of his employer's work, any such adjudication 
 shall not impair the validity of this act in other respects, 
 and in every such case an accounting in accordance 
 with the justice of the case shall be had of moneys
 
 CONSTITUTIONAL DECISIONS 713 
 
 Washington 
 
 received. If the provisions of 4 of this act for the 
 creation of the accident fund, or the provisions of this 
 act making the compensation to the workman provided 
 in it exclusive of any other remedy on the part of the 
 workman shall be held invalid the entire act shall be 
 thereby invalidated except the provisions of 31, and 
 an accounting according to the justice of the case shall 
 be had of moneys received. In other respects an ad- 
 judication of invalidity of any part of this act shall 
 not affect the validity of the act as a whole or any other 
 part thereof." 
 
 Section 29 appropriates out of the general fund in 
 the state treasury the sum of $150,000, to be known 
 as an " administration fund," out of which the salaries, 
 traveling, and office expenses of the department shall 
 be paid, together with all the expenses of administration 
 of the accident fund; and out of the accident fund is 
 appropriated $1,500,000 to be applied to the purposes 
 for which such fund is applicable. The remaining sec- 
 tions relate to the administration, and define and limit 
 the effect and operation of the act, and need no special 
 reference to their contents. 
 
 The foregoing summary makes clear the theory and 
 purpose of the act. It is founded on the basic principle 
 that certain defined industries called in the act extra- 
 hazardous should be made to bear the financial losses 
 sustained by the workmen engaged therein through 
 personal injuries, and its purpose is to furnish a remedy 
 that will reach every injury sustained by a workman 
 engaged in any of such industries, and make a sure 
 and certain award therefor, bearing a just proportion 
 to the loss sustained, regardless of the manner in which 
 the injury was received. With the economic questions
 
 714 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 thus suggested, the auditor's learned counsel object 
 only to the wisdom of the scheme formulated. They 
 concede that the evil is one calling for a remedy, and 
 direct their arguments solely against this particular 
 act. In our discussion we shall confine ourselves to 
 the questions thus suggested, noticing the economic 
 questions only incidentally. 
 
 The act is challenged as unconstitutional on four 
 distinct grounds: (1) That it violates 3 of article 1 of 
 the state constitution, and the Fourteenth Amendment 
 to the Constitution of the United States, which provide 
 that no person shall be deprived of life, liberty or prop- 
 erty without due process of law; (2) that it violates 
 12 of article 1 of the state constitution, which provides 
 that no law shall be passed granting to any citizen, 
 class of citizens, or corporations, other than municipal, 
 privileges or immunities which, upon the same terms, 
 shall not equally belong to all citizens or corporations; 
 and the Fourteenth Amendment to the Constitution 
 of the United States, which provides for the equal pro- 
 tection of the laws; (3) that it violates 1 and 2 of 
 article 7 of the state constitution, which provide that 
 property shall be taxed according to its value in money 
 and that all taxation shall be equal and uniform; and 
 (4) that it violates 21 of article 1 of the state constitu- 
 tion, which provides that the right of trial by jury shall 
 remain inviolate. But, while we shall discuss the ques- 
 tions suggested under the several divisions as here set 
 out, it is obvious that no very logical segregation of 
 the argument can be thus made, as many of the reasons 
 advanced for or against the act under one particular 
 division are equally applicable to one or more of the 
 others. Any different arrangement, however, seems
 
 CONSTITUTIONAL DECISIONS 715 
 
 Washington 
 
 to be at the sacrifice of clearness, and we pass therefore 
 directly to the first objection stated. 
 
 It is with regret that we are unable to set forth at 
 length counsel's argument on this branch of the case, 
 as any abbreviation of it is at the expense of its cogency 
 and force. To do so, however, would unduly lengthen 
 this opinion. The argument is based on two funda- 
 mental ideas: The one, that the act creates a liability 
 without fault ; and, the other, that it takes the property 
 of one employer to pay the obligations of another. It 
 must be conceded that these contentions have a basis 
 in fact, and that they, on first impression, constitute 
 a persuasive argument against the validity of the act. 
 Since there is exacted from every employer of labor 
 engaged in one or more of the industries termed hazard- 
 ous a certain fixed sum based upon his pay roll, which 
 is to be used to compensate employes working in such 
 hazardous employments who receive personal injuries, 
 regardless of the question whether the injury was be- 
 cause of the fault of the employer or of the negligence 
 of the employe, it can be said that some part of the sum 
 so collected will be paid out on injuries in which the 
 employer is without fault; and, furthermore, since 
 every such employer is liable to make the payments 
 whether or not any of his own workmen are injured, 
 and since an employer is liable under the common law 
 for an injury to his own workmen only, it can also be 
 said that by this act one employer is held liable for the 
 obligations of another. 
 
 But these conditions do not furnish an absolute test 
 of the validity of the act. In the statute books of the 
 several States are many statutes held constitutional 
 by the courts where liability is created without fault,
 
 716 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 and where the property of one person is taken to pay 
 the obligations of another, and this where no compen- 
 sation is made to the person who is thus made liable 
 or whose property is thus taken, other than perhaps 
 the bestowal upon him of some privilege. The test of 
 the validity of such a law is not found in the inquiry: 
 Does it do the objectionable things? But is found rather 
 in the inquiry: Is there no reasonable ground to be- 
 lieve that the public safety, health, or general welfare 
 is promoted thereby? The legislature cannot, of course, 
 without violating this clause of the Constitution, de- 
 clare a particular industry, commonly engaged in by 
 the people, to be unlawful which, under all circum- 
 stances, must necessarily be harmless and innocent; 
 but it can regulate and control and prohibit any in- 
 dustry, however innocent it may have been in its in- 
 ception, whenever it becomes a menace to the em- 
 ployes engaged in it, the people surrounding it, or to 
 any considerable number of the people at large, no 
 matter from whatsoever cause the menace may arise. 
 This it does under the police power "the power in- 
 herent in every sovereignty, * * * the power to govern 
 men and things." It is unnecessary to discuss the 
 origin, nature, or extent of this power. It is sufficient 
 to say that, by means of it, the legislature exercises a 
 supervision over matters affecting the common weal 
 and enforces the observance by each individual member 
 of society of duties which he owes to others and the 
 community at large. The possession and enjoyment 
 of all rights are subject to this power. Under it the 
 State may "prescribe regulations promoting the health, 
 peace, morals, education, and good order of the people, 
 and to legislate so as to increase the industries of the
 
 CONSTITUTIONAL DECISIONS 717 
 
 Washington 
 
 State, develop its resources, and add to its welfare and 
 prosperity." In fine, when reduced to its ultimate and 
 final analysis, the police power is the power to govern. 
 It is not meant here to be asserted that this power is 
 above the Constitution, or that everything done in the 
 name of the police power is lawfully done. It is meant 
 only to be asserted that a law which interferes with 
 personal and property rights is valid only when it tends 
 reasonably to correct some existing evil or promote 
 some interest of the State, and is not in violation of any 
 direct and positive mandate of the Constitution. The 
 clause of the Constitution now under consideration 
 was intended to prevent the arbitrary exercise of power, 
 or undue, unjust, and capricious interference with per- 
 sonal rights ; not to prevent those reasonable regulations 
 that all must submit to as a condition of remaining a 
 member of society. In other words, the test of a police 
 regulation, when measured by this clause of the Con- 
 stitution, is reasonableness, as contradistinguished from 
 arbitrary or capricious action. 
 
 The authorities, as we view them, abundantly sup- 
 port the foregoing principles. Of statutes upheld by 
 the courts which can be said to create liability without 
 fault and take the property of one person to pay the 
 obligations of another, the most conspicuous examples 
 are, perhaps, 4588 and 4803 of the Revised Statutes 
 of the United States, which provide : 
 
 "Sec. 4585. There shall be assessed and collected by 
 the collectors of customs at the ports of the United 
 States, from the master or owner of every vessel of the 
 United States arriving from a foreign port, or of every 
 registered vessel employed in the coasting trade, and 
 before such vessel shall be admitted to entry, the sum
 
 718 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 of forty cents per month for each and every seaman 
 who shall have been employed on such vessel since she 
 was last entered at any port of the United States; such 
 sum such master or owner may collect and retain from 
 the wages of such seamen." 
 
 "Sec. 4803. The several collectors of the customs 
 shall respectively deposit, without abatement or reduc- 
 tion, the sums collected by them under the provisions 
 of law imposing a tax upon seamen for hospital purposes, 
 with the nearest depositary of public moneys, and shall 
 make returns of the same, with proper vouchers, 
 monthly, to the Secretary of the Treasury, upon forms 
 to be furnished by him. All such moneys shall be placed 
 to the credit of ' the fund for the relief of sick and dis- 
 abled seamen;' of which fund separate accounts shall 
 be kept in the treasury. Such fund is appropriated 
 for the expenses of the marine-hospital service, and 
 shall be employed, under the direction of the Secretary 
 of the Treasury, for the care and relief of sick and dis- 
 abled seamen employed in registered, enrolled and 
 licensed vessels of the United States." U. S. Comp. St. 
 1901, p. 3322. 
 
 This statute clearly does everything that is charged 
 against the statute at bar. It creates liability without 
 fault, since it obligates the master or owner of every 
 vessel of the United States to pay into a given fund, 
 controlled by the government, a fixed sum for the 
 benefit of sick and disabled seamen, regardless of the 
 fact whether or not the vessel of the master or owner 
 making the payment has any sick or disabled seamen 
 who take advantage of the fund; and it takes the prop- 
 erty of one to pay the obligations of another, since the 
 fund is disbursed in the cure of sick and disabled Amer-
 
 CONSTITUTIONAL DECISIONS 719 
 
 Washington 
 
 lean seamen generally, regardless of the fact whether or 
 not the expense of their cure exceeds the sum paid in 
 by the master or owner of the vessel from which they 
 came. Whatever may be said as to the foundation of 
 the liability of the master or the owner of a vessel, or 
 the vessel itself, to answer for the expenses of the cure 
 of sick and disabled seamen while in service on the ship, 
 the foundation of this liability is purely statutory, and, 
 if the objection that is made to the present statute were 
 sufficient to condemn it, the statute is in violation of 
 the Fifth Amendment to the Constitution of the United 
 States. The statute had its inception in the act of 
 Congress of July 16, 1798, Chapter 77, 1 Stat. 606, and 
 was on the statute books for nearly 100 years, during 
 which time it was continuously enforced. It is true 
 our attention has been called to no case where the 
 statute was directly attacked; but there are numerous 
 cases in which it has been specifically mentioned and 
 given force, and it would seem that, if it were thought in- 
 imical to the Constitution, it would not have escaped the 
 attention of the astute counsel whose client's interests 
 were adversely affected by it. Buckley v. Brown, Fed. 
 Cas. No. 2,092; Reed v. Canfield, Fed. Gas. No. 11,641; 
 Peterson v. The Chandos (D. C.), 4 Fed. Rep. 645; Holt 
 v. Cummings, 102 Pa. 212, 48 Am. Rep. 199. See, also, 
 3 Ops. Attys. Gen. (U. S.) 683; 13 Ops. Attys. Gen. 
 (U. S.) 330. 
 
 Statutes making railroad corporations absolutely 
 liable, without regard to negligence, for injuries to prop- 
 erty caused by fires escaping from their locomotive 
 engines, are clearly statutes creating liability without 
 fault, yet these statutes have been upheld by all the 
 courts of the States in which they have been enacted, as
 
 720 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 well as by the Supreme Court of the United States. 
 Chapman v. Atlantic & St. Lawrence R. R. Co., 37 Me. 
 92; Sherman v. Maine Cent. R. R. Co., 86 Me. 422; 30 
 Atl. 69; Hooksett v. Concord R. R. Co., 38 N. H. 242; 
 Smith v. Boston & Maine R. R. Co., 63 N. H. 25; Lyman 
 v. Boston & Worcester R. Corp., 4 Gush. (Mass.) 288; 
 Pierce v. Worcester & Nashua R. R. Co., 105 Mass. 199; 
 Rodemacher v. Milwaukee & St. P. R. R. Co., 41 Iowa, 
 297; 20 Am. Rep. 592; Mathews v. St. Louis & San 
 Francisco R. R. Co., 121 Mo. 298; 24 S. W. 591; 25 L. R. 
 A. 161; Emerson v. Gardiner, 8 Kan. 452; Jensen v. 
 South Dakota Cent. R. R. Co., 25 S. D. 506; 127 N. W. 
 650; St. Louis & San Francisco R. R. Co. v. Mathews, 
 165 U. S. 1; 17 Sup. Ct. 243; 41 L. Ed. 611; Atchison, 
 T. & S. F. R. R. Co. v. Matthews, 174 U. S. 96; 19 Sup. 
 Ct. 609; 43 L. Ed. 909. Other statutes are those pro- 
 viding that any landlord who knowingly leases his 
 premises for saloon purposes shall be liable for losses 
 resulting from intoxication caused by the sale of liquor 
 by his lessee. Such a statute was formerly in force in 
 this State, and was given effect by this court. Delfel v. 
 Hanson, 2 Wash. 194; 26 Pac. 220; Burkman v. Jamieson, 
 25 Wash. 606; 66 Pac. 48. And in Bertholf v. O'Reilly, 
 74 N. Y. 509; 30 Am. Rep, 323, the constitutionality 
 of a like statute was maintained in an opinion by Judge 
 ANDREWS renowned for its ability and learning. In 
 the course of his opinion, the learned judge noted the 
 fact that the liability of the landlord could not be sus- 
 tained on the theory that such liability was a condition 
 of a privilege granted by the statute, but rested the 
 decision on the principle that the State, under its police 
 power, could impose upon the landlord liability for the 
 acts of his tenants. In the course of the opinion this
 
 CONSTITUTIONAL DECISIONS 721 
 
 Washington 
 
 language was used: "And the act of 1873 is not invalid 
 because it creates a right of action and imposes a lia- 
 bility not known to the common law. There is no such 
 limit to legislative power. The legislature may alter 
 or repeal the common law. It may create new offenses, 
 enlarge the scope of civil remedies, and fasten responsi- 
 bility for injuries upon persons against whom the com- 
 mon law gives no remedy. We do not mean that the 
 legislature may impose upon one man liability for an 
 injury suffered by another, with which he had no con- 
 nection. But it may change the rule of the common 
 law, which looks only to the proximate cause of the 
 mischief, in attaching legal responsibility, and allow 
 a recovery to be had against those whose acts con- 
 tributed, although remotely, to produce it. * * * The 
 liability imposed upon the landlord for the acts of the 
 tenant is not a new principle in legislation. His liability 
 only arises when he has consented that the premises 
 may be used as a place for the sale of liquors. He 
 selects the tenant, and he may, without violating any 
 constitutional provision, be made responsible for the 
 tenant's acts connected with the use of the leased 
 property." 
 
 Statutes imposing a liability upon fire insurance 
 agents, based upon the amount of the insurance effected 
 by them, for the benefit of a fund to care for and cure 
 sick and injured firemen, have been upheld in the States 
 of New York and Illinois. Fire Department v. Noble, 
 3 E. D. Smith (N. Y.), 440; Fire Department v. Wright, 
 3 E. D. Smith (N. Y.), 453; Exempt Fireman's Fund v. 
 Roome, 29 Hun (N. Y.), 391, 394; Firemen's Benevolent 
 Assn. v. Lounsbury, 21 III. 511; 74 Am. Dec. 115. 
 Clearly these are statutes creating liability without 
 46
 
 722 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 fault. A similar statute relating to agents of foreign 
 fire insurance companies was upheld in Wisconsin. 
 Fire Department v. Helfenstein, 16 Wis. 136. 
 
 The statute of Nebraska makes a railroad company 
 liable in damages for injuries sustained by a passenger 
 regardless of the question of negligence on the part of 
 the company, except where the injury is caused by the 
 passenger's criminal negligence, or by his violation of 
 some express rule of the company, actually brought to 
 his attention. This statute was upheld against a chal- 
 lenge on the ground that it violated the due process of 
 law clauses of the state and Federal constitutions, by 
 the state court, in Chicago, R. I. & P. R. Co. v. Zer- 
 necke, 59 Neb. 689; 82 N. W. 26; 55 L. R. A. 610, and 
 by the Supreme Court of the United States in Chicago, 
 R. L, etc., Ry. Co. v. Zernecke, 183 U. S. 582; 22 Sup. 
 Ct. 229; 46 L. Ed. 339. The Supreme Court of the 
 United States, vindicating the statute against the at- 
 tack made upon it, used the following language: "In 
 Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143; 49 
 N. W. 1114, the words of the statute exempting railroad 
 companies from liability, 'where the injury done arose 
 from the criminal negligence of the persons injured,' 
 were defined to mean 'gross negligence,' 'such negli- 
 gence as would amount to a flagrant and reckless dis- 
 regard ' by the passenger of his own safety, and ' amount 
 to a willful indifference to the injury liable to follow.' 
 This definition was approved in subsequent cases. It 
 was also approved in the case at bar, and the plaintiff 
 in error, it was in effect declared, was precluded from 
 any defense but that of negligence as defined, or that 
 the injury resulted from the violation of some rule of 
 the company by the passenger brought to his actual
 
 CONSTITUTIONAL DECISIONS 723 
 
 Washington 
 
 notice, and the company, as we have said, was not per- 
 mitted to introduce evidence that the derailment of 
 its train was caused by the felonious act of a third 
 person. The statute, thus interpreted and enforced, 
 it is asserted, impairs the constitutional rights of plain- 
 tiff in error. The specific contention is that the com- 
 pany is deprived of its defense, and not only declared 
 guilty of negligence and wrongdoing without a hearing, 
 but adjudged to suffer without wrongdoing, indeed even 
 for the crimes of others, which the company could not 
 have foreseen or have prevented. Thus described, the 
 statute seems objectionable. Regarded as extending 
 the rule of liability for injury to persons which the 
 common law makes for the loss of or injury to things, 
 the statute seems defensible. And it was upon this 
 ground that the Supreme Court of the State defended 
 and vindicated the statute. The court said : ' The legis- 
 lation is justifiable under the police power of the State, 
 so it has been held. It was enacted to make railroad 
 companies insurers of the safe transportation of their 
 passengers as they were of baggage and freight; and 
 no good reason is suggested why a railroad company 
 should be released from liability for injuries received 
 by a passenger while being transported over its line, 
 while the corporation must respond for any damages 
 to his baggage or freight.' Our jurisprudence affords 
 examples of legal liability without fault, and the dep- 
 rivation of property without fault being attributable 
 to its owner. The law of deodands was such an ex- 
 ample. The personification of the ship in admiralty 
 law is another. Other examples are afforded in the 
 liability of the husband for the torts of the wife the 
 liability of a master for the acts of his servants. In
 
 724 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 Missouri Railway Co. v. Mackey, 127 U. S. 205; 8 Sup. 
 Ct. 1161; 32 L. Ed. 107, a statute of Kansas abrogating 
 the common-law rule exempting a master from liability 
 to a servant for the negligence of a fellow servant was 
 sustained against the contention that such statute 
 violated the Fourteenth Amendment of the Constitu- 
 tion of the United States. And in Minneapolis, etc., 
 Railway Co. v. Herrick, 127 U. S. 210; 8 Sup. Ct. 1176; 
 32 L. Ed. 109, a statute of Iowa which extended lia- 
 bility for the 'willful wrongs, whether of commission 
 or omission,' of the 'agents, engineers or other employes' 
 of railroad companies, was vindicated against the double 
 attack of being an unjust discrimination against railroad 
 corporations and the deprivation of property without 
 due process of law." 
 
 The latest illustration of such a statute is found 
 in the Oklahoma Depositors' Guaranty Law, which au- 
 thorizes the assessment and collection of a certain per 
 centum on the daily average deposit of each and every 
 bank organized under the laws of the State as a fund 
 to pay the losses caused depositors by failing and in- 
 solvent banks. This act was challenged in the state 
 court on the ground that it violated the Fourteenth 
 Amendment to the Constitution of the United States, 
 and the due process of law clause of the state constitu- 
 tion, but was upheld by the state court, and on writ 
 of error to the Supreme Court of the United States 
 the judgment of the state court was affirmed. Noble 
 State Bank v. Haskell, 22 Okla. 48; 97 Pac. 590; Noble 
 State Bank v. Haskell, 219 U. S. 104; 31 Sup. Ct. 186; 
 55 L. Ed. 000, 32 L. R. A. (N. S.) 1062. Answering 
 the objection that the act takes private property for a 
 private use, and creates a liability without fault, the
 
 CONSTITUTIONAL DECISIONS 725 
 
 Washington 
 
 Supreme Court of the United States said: "The sub- 
 stance of the plaintiff's argument is that the assessment 
 takes private property for private use without com- 
 pensation. And while we should assume that the plain- 
 tiff would retain a reversionary interest in its contribu- 
 tion to the fund so as to be entitled to a return of what 
 remained of it if the purpose were given up (see Receiver 
 of Danby Bank v. State Treasurer, 39 Vt. 92, 98), still 
 there is no denying that by this law a portion of its 
 property might be taken without return to pay debts 
 of a failing rival in business. Nevertheless, notwith- 
 standing the logical form of the objection, there are 
 more powerful considerations on the other side. In 
 the first place, it is established by a series of cases that 
 an ulterior public advantage may justify a compara- 
 tively insignificant taking of private property for what, 
 in its immediate purpose, is a private use. Clark v. 
 Nash, 198 U. S. 361; 25 Sup. Ct. 676; 49 L. Ed. 1085; 
 Strickley v. Highland Boy Mining Co., 200 U. S. 527, 
 531 ; 26 Sup. Ct. 301 ; 50 L. Ed. 581 ; Offield v. New York, 
 New Haven & Hartford R. R. Co., 203 U. S. 372; 27 
 Sup. Ct. 72; 51 L. Ed. 231; Bacon v. Walker, 204 U. S. 
 311, 315; 27 Sup. Ct. 289; 51 L. Ed. 499. And, in the 
 next, it would seem that there may be other cases beside 
 the everyday one of taxation, in which the share of 
 each party in the benefit of a scheme of mutual protec- 
 tion is sufficient compensation for the correlative burden 
 that it is compelled to assume. See Ohio Oil Co. v. 
 Indiana, 177 U. S. 190; 20 Sup. Ct. 576; 44 L. Ed. 729. 
 At least, if we have a case within the reasonable exercise 
 of the police power as above explained, no more need 
 be said." 
 
 Illustrations of the nature and all-pervading extent
 
 72G BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 of the police power are shown somewhat in the cases 
 already cited. Other illustrations abound almost with- 
 out number in the decisions of the state and Federal 
 courts. It will be sufficient for our purposes, however, 
 to call attention to a few of those which most clearly, 
 as we believe, illustrate the doctrine. In Lawton v. 
 Steele, 152 U. S. 133; 14 Sup. Ct. 499; 38 L. Ed. 385, 
 the court used this language: "The extent and limits 
 of what is known as the police power have been a fruit- 
 ful subject of discussion in the appellate courts of nearly 
 every State in the Union. It is universally conceded 
 to include everything essential to the public safety, 
 health, and morals, and to justify the destruction or 
 abatement, by summary proceedings, of whatever may 
 be regarded as a public nuisance. Under this power 
 it has been held that the State may order the destruc- 
 tion of a house falling to decay or otherwise endanger- 
 ing the lives of passers-by; the demolition of such as 
 are in the path of a conflagration; the slaughter of 
 diseased cattle; the destruction of decayed or unwhole- 
 some food; the prohibition of wooden buildings in cities; 
 the regulation of railways and other means of public 
 conveyance, and of interments in burial grounds; the 
 restriction of objectionable trades to certain localities; 
 the compulsory vaccination of children; the confine- 
 ment of the insane or those afflicted with contagious 
 diseases; the restraint of vagrants, beggars, and habitual 
 drunkards; the suppression of obscene publications and 
 houses of ill fame; and the prohibition of gambling 
 houses and places where intoxicating liquors are sold. 
 Beyond this, however, the State may interfere wherever 
 the public interests demand it, and in this particular a 
 large discretion is necessarily vested in the legislature
 
 CONSTITUTIONAL DECISIONS 727 
 
 Washington 
 
 to determine, not only what the interests of the public 
 require, but what measures are necessary for the pro- 
 tection of such interests." 
 
 Again, in H olden v. Hardy, 169 U. S. 366; 18 Sup. Ct. 
 383; 42 L. Ed. 780, it was said: "An examination of 
 both these classes of cases under the Fourteenth Amend- 
 ment will demonstrate that, in passing upon the validity 
 of state legislation under that amendment, this court 
 has not failed to recognize the fact that the law is, to 
 a certain extent, a progressive science; that in some 
 of the States methods of procedure, which at the time 
 the Constitution was adopted were deemed essential 
 to the protection and safety of the people, or to the 
 liberty of the citizen, have been found to be no longer 
 necessary; that restrictions which had formerly been 
 laid upon the conduct of individuals, or of classes of 
 individuals, had proved detrimental to their interests; 
 while, upon the other hand, certain other classes of 
 persons, particularly those engaged in dangerous or 
 unhealthful employments, have been found to be in 
 need of additional protection. Even before the adop- 
 tion of the Constitution, much had been done toward 
 mitigating the severity of the common law, particularly 
 in the administration of its criminal branch. The num- 
 ber of capital crimes, in this country at least, had been 
 largely decreased. Trial by ordeal and by battle had 
 never existed here, and had fallen into disuse in Eng- 
 land. The earlier practice of the common law, which 
 denied the benefit of witnesses to a person accused of 
 felony, had been abolished by statute, though, so far 
 as it deprived him of the assistance of counsel and 
 compulsory process for the attendance of his witnesses, 
 it had not been changed in England. But to the credit
 
 728 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 of her American colonies let it be said that so oppressive 
 a doctrine had never obtained a foothold there. The 
 present century has originated legal reforms of no less 
 importance. The whole fabric of special pleading, 
 once thought to be necessary to the elimination of the 
 real issue between the .parties, has crumbled to pieces. 
 The ancient tenures of real estate have been largely 
 swept away, and land is now transferred almost as 
 easily and cheaply as personal property. Married 
 women have been emancipated from the control of 
 their husbands and placed upon a practical equality 
 with them with respect to the acquisition, possession, 
 and transmission of property. Imprisonment for debt 
 has been abolished. Exemptions from execution have 
 been largely added to, and in most of the States home- 
 steads are rendered incapable of seizure and sale upon 
 forced process. Witnesses are no longer incompetent 
 by reason of interest, even though they be parties to the 
 litigation. Indictments have been simplified, and an 
 indictment for the most serious of crimes is now the 
 simplest of all. In several of the States grand juries, 
 formerly the only safeguard against a malicious prosecu- 
 tion, have been largely abolished, and in others the rule 
 of unanimity, so far as applied to civil cases, has given 
 way to verdicts rendered by a three-fourths majority. 
 This case does not call for an expression of opinion as 
 to the wisdom of these changes, or their validity under 
 the Fourteenth Amendment, although the substitution 
 of prosecution by information in lieu of indictment was 
 recognized as valid in Hurtado v. California, 110 U. S. 
 516; 4 Sup. Ct. Ill, 292; 28 L. Ed. 232. They are men- 
 tioned only for the purpose of calling attention to the 
 probability that other changes of no less importance
 
 CONSTITUTIONAL DECISIONS 729 
 
 Washington 
 
 may be made in the future, and that, while the cardinal 
 principles of justice are immutable, the methods by 
 which justice is administered are subject to constant 
 fluctuation, and that the Constitution of the United 
 States, which is necessarily and to a large extent inflexi- 
 ble and exceedingly difficult of amendment, should 
 not be so construed as to deprive the States of the power 
 to so amend their laws as to make them conform to the 
 wishes of the citizens as they may deem best for the 
 public welfare without bringing them into conflict with 
 the supreme law of the land." 
 
 So in Noble Stale Bank v. Haskell, supra, Mr. Justice 
 HOLMES said : " It may be said in a general way that the 
 police power extends to all the great public needs. 
 Camfield v. United States, 167 U. S. 518; 17 Sup. Ct. 
 864; 42 L. Ed. 260. It may be put forth in aid of 
 what is sanctioned by usage, or held by the prevailing 
 morality or strong and preponderant opinion to be 
 greatly and immediately necessary to the public wel- 
 fare. Among matters of that sort probably few would 
 doubt that both usage and preponderant opinion give 
 their sanction to enforcing the primary conditions of suc- 
 cessful commerce. One of those conditions at the 
 present time is the possibility of payment by checks 
 drawn against bank deposits; to such an extent do checks 
 replace currency in daily business. If then the legisla- 
 ture of the State thinks that the public welfare requires 
 the measure under consideration, analogy and principle 
 are in favor of the power to enact it. Even the primary 
 object of the required assessment is not a private benefit 
 as it was in the cases above cited of a ditch for irriga- 
 tion or a railway to a mine, but it is to make the cur- 
 rency of checks secure, and by the same stroke to make
 
 730 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 safe the almost compulsory resort of depositors to 
 banks as the only available means for keeping money 
 on hand. The priority of claim given to depositors is 
 incidental to the same object and is justified in the 
 same way. The power to restrict liberty by fixing a 
 minimum of capital required of those who would engage 
 in banking is not denied. The power to restrict invest- 
 ments to securities regarded as relatively safe seems 
 equally plain. It has been held, we do not doubt rightly, 
 that inspections may be required and the cost thrown 
 on the bank. See Charlotte, Columbia & Augusta R. R. 
 Co. v. Gibbes, 142 U. S. 386; 12 Sup. Ct. 255; 35 L. Ed. 
 1051. The power to compel, beforehand, co-operation, 
 and thus, it is believed, to make a failure unlikely and a 
 general panic almost impossible, must be recognized, 
 if government is to do its proper work, unless we can 
 say that the means have no reasonable relation to the 
 end. Gundling v. Chicago, 177 U. S. 183, 188; 20 Sup. 
 Ct. 633; 44 L. Ed. 725. So far is that from being the 
 case that the device is a familiar one. It was adopted 
 by some States the better part of a century ago, and 
 seems never to have been questioned until now. Re- 
 ceiver of Danby Bank v. State Treasurer, 39 Vt. 92; 
 People v. Walker, 17 N. Y. 502. Recent cases going 
 not less far are Lemieux v. Young, 211 U. S. 489, 496; 
 29 Sup. Ct. 174; 53 L. Ed. 295; Kidd, Daler & Price Co. 
 v. Musselman Grocer Co., 217 U. S. 461; 30 Sup. Ct. 
 606; 54 L. Ed. 839. It is asked whether the State could 
 require all corporations or all grocers to help to guaran- 
 tee each other's solvency, and where we are going to 
 draw the line. But the last is a futile question, and we 
 will answer the others when they arise. With regard to 
 the police power, as elsewhere in the law, lines are
 
 CONSTITUTIONAL DECISIONS 731 
 
 Washington 
 
 pricked out by the gradual approach and contact of 
 decisions on the opposing sides. Hudson County Water 
 Co. v. McCarter, 209 U. S. 349, 355; 28 Sup. Ct. 529; 
 52 L. Ed. 828. It will serve as a datum on this side 
 that in our opinion the statute before us is well within 
 the State's constitutional power, while the use of the 
 public credit on a large scale to help individuals hi busi- 
 ness has been held to be beyond the line. Loan Associa- 
 tion v. Topeka, 20 Wall. 655; 22 L. Ed. 455; Lowell v. 
 Boston, 111 Mass. 454; 15 Am. Rep. 39." 
 
 It is argued, however, that the statutes above referred 
 to can be supported on principles not applicable to 
 the statute before us. First, it is said that the statutes 
 creating absolute liability on railroad companies for 
 losses caused by fires from their locomotive engines 
 are in themselves but a return to the common law as 
 it originally existed. But this does not meet the objec- 
 tion. At the tune the common law became a rule of 
 action for the American States, the doctrine that negli- 
 gence or fault of some kind was a necessary element 
 of liability was as firmly imbedded in it as was any 
 other of its tenets, and to create liability regardless of 
 negligence is now as fundamental a change in the com- 
 mon law as it would be had the rule always remained 
 as it now is. Again, it is said that the right to use the 
 agencies of fire and steam in the movement of trains 
 is derived from legislation by the State, and the State 
 can, for that reason, prescribe such limitations upon 
 and annex such conditions to its use as it may deem 
 fit and necessary to protect from injury those who 
 come in contact with it. But the premise here assumed 
 is not strictly accurate. The use of fire and steam to 
 propel trains is not in itself unlawful. On the contrary,
 
 732 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 it is as much a natural right as is the right to propel 
 them by any other means or to engage in any other 
 lawful enterprise. Hence the power to regulate and 
 interfere with the right must come from some source 
 other than the inherent unlawfulness of the act itself. 
 It is not meant to be said, of course, that the State, 
 when it grants a charter to a railroad company em- 
 powering it to construct and operate a railroad within 
 its boundaries, may not annex to the charter such 
 conditions as it pleases. But that is not the question 
 here. The question is: Whence comes the power to 
 impose these additional burdens upon a railroad cor- 
 poration by legislative fiat after it has received its 
 charter and has constructed and is operating its road 
 thereunder? Unless the Constitution or the act grant- 
 ing the charter itself expressly reserves such right, the 
 legislature cannot materially change the charters of 
 railroad companies after it has once granted them. 
 The power to annex additional conditions thereto must 
 therefore be found in some other power than the one 
 here alluded to. Then, again, it is said with reference 
 to these and the bank guaranty statutes that the cor- 
 porations named therein are affected with a public in- 
 terest, and that this fact renders them subject to regula- 
 tions that they would not otherwise be subject to. But 
 again we say that the legislature, because of this public 
 interest, may be warranted in imposing such a condi- 
 tion as a precedent right to engage in the business of 
 railroading or banking, but it furnishes no reason for 
 imposing additional conditions after the business has 
 been entered upon with the consent of the State. The 
 property of such institutions is private property, and 
 its ownership is as secure and free from arbitrary exac-
 
 CONSTITUTIONAL DECISIONS 733 
 
 Washington 
 
 tions as is the property invested in enterprises of a 
 more private nature. Of the statutes making the land- 
 lord liable for damages caused by the sale of intoxicating 
 liquors by his tenant, it is said that the traffic is unlaw- 
 ful in itself; that " whisky is an outlaw," and hence the 
 legislature, if it permits its sale at all, may prescribe 
 the terms upon which sales shall be made. But here 
 again the assumption is not in accord with the fact. 
 The sale of liquor was not unlawful at common law. 
 On the contrary, it has been said by as high an au- 
 thority as the Supreme Court of the United States that 
 the State could no more exclude "its importation and 
 sale in original packages without the consent of Con- 
 gress than it could exclude the sugar of Louisiana, the 
 cotton of South Carolina, the wines of California, the 
 hops of Washington, the tobacco of Maryland and 
 Connecticut, or the products natural or manufactured 
 of any State." Lyng v. Michigan, 135 U. S. 161; 10 
 Sup. Ct. 725; 34 L. Ed. 150. It refused to classify in- 
 toxicating liquors with rags or other goods infected 
 with disease, or with cattle or meat or other provisions 
 which from their condition are unfit for human use or 
 consumption, as it was conceded that the State could 
 prohibit the importation and use of these in any form, 
 with or without the consent of Congress. It seems to 
 us, therefore, that it cannot be successfully controverted 
 that all of these statutes rest upon the same basic 
 principle on which the statute at bar rests; that is to 
 say, they have their foundation in the police power of 
 the State. 
 
 Nor is it sufficient to exclude the industries men- 
 tioned in the act before us from the operation of these 
 principles to say that they are lawful callings, not sub-
 
 734 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 ject to absolute prohibition. As we have said in an- 
 other place, lawful trades and businesses, although 
 private in their nature, are subject to the police power, 
 and may be controlled and regulated under it whenever 
 the welfare of the State requires it. This is well illus- 
 trated by the laws of our own State. For example, 
 the statute requiring employers of labor to pay their 
 employes in lawful money; the statute requiring em- 
 ployers of female help in stores or offices to provide 
 each of them with a chair or stool on which to rest when 
 their duties permit ; the statute prohibiting the employ- 
 ment of females in any mechanical or mercantile estab- 
 lishment, laundry, hotel, or restaurant, for more than 
 ten hours in any one day; the statute limiting the 
 number of hours an employe will be permitted in any 
 one day to work underground in a coal mine; the statute 
 requiring machinery in factories, mills, and workshops, 
 the openings of all hoistways, hatchways, elevators, 
 and well-holes, to be guarded; the statute appointing a 
 commissioner of labor, and empowering him to inspect 
 mills and factories and charge the cost thereof to the 
 mill or factory inspected are all statutes regulating 
 lawful trades or businesses not affected with public 
 interests, yet each and all of them have been upheld and 
 enforced in a long line of cases by this court. State v. 
 Buchanan, 29 Wash. 602; 70 Pac. 52; 59 L. R. A. 342; 
 92 Am. St. Rep. 930; KirkJiam v. Wheeler-Osgood Co., 
 39 Wash. 415; 81 Pac. 869; Shortall v. Puget Sound 
 Bridge & Dredging Co., 45 Wash. 290; 88 Pac. 212; 122 
 Am. St. Rep. 899; Hall v. West & Slade Mill Co., 39 
 Wash. 447; 81 Pac. 915; Whelan v. Washington Lumber 
 Co., 41 Wash. 153; 83 Pac. 98; 111 Am. St. Rep. 1006. 
 The Supreme Court of the United States, in Sentell v.
 
 CONSTITUTIONAL DECISIONS 735 
 
 Washington 
 
 New Orkans, etc., Railroad Co., 166 U. S. 698; 17 Sup. 
 Ct. 693; 41 L. Ed. 1169, speaking of the power of the 
 State to interfere with private property, used this 
 language: "That a State in a bona fide exercise of its 
 police power, may interfere with private property, and 
 even order its destruction, is as well settled as any 
 legislative power can be, which has for its objects the 
 welfare and comfort of the citizen. For instance, meats, 
 fruits, and vegetables do not cease to become private 
 property by their decay; but it is clearly within the 
 power of the State to order their destruction in times 
 of epidemic, or whenever they are so exposed as to be 
 deleterious to the public health. There is also property 
 in rags and clothing; but that does not stand in the 
 way of their destruction in case they become infected 
 and dangerous to the public health. No property is 
 more sacred than one's home, and yet a house may be 
 pulled down or blown up by the public authorities, if 
 necessary to avert or stay a general conflagration, and 
 that, too, without recourse against such authorities for 
 the trespass." 
 
 The power to regulate, therefore, applies alike to all 
 employments. The test of the power is found in the 
 effect the pursuit of the calling has upon the public 
 weal rather than in the inherent nature of the calling 
 itself. 
 
 In Allgeyer v. Louisiana, 165 U. S. 578; 17 Sup. Ct. 
 427; 41 L. Ed. 832, the court, referring to the Four- 
 teenth Amendment to the Constitution of the United 
 States, said: "The liberty mentioned in that amend- 
 ment means not only the right of the citizen to be free 
 from the mere physical restraint of his person, as by 
 incarceration, but the term is deemed to embrace the 

 
 736 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 right of the citizen to be free in the enjoyment of all his 
 faculties; to be free to use them in all lawful ways; to 
 live and work where he will; to earn his livelihood by 
 any lawful calling; to pursue any livelihood or avoca- 
 tion, and for that purpose to enter into all contracts 
 which may be proper, necessary and essential to his 
 carrying out to a successful conclusion the purposes 
 above mentioned." 
 
 It is thought the act at bar interferes with certain 
 of the personal rights here defined, particularly with 
 the right of contract, and is for that reason violative 
 of this provision of the Constitution. But it is recog- 
 nized in the case cited, and in many others, that these 
 rights are not absolute. On the contrary, it has been 
 many tunes said that there is no absolute right to do 
 as one wills, pursue any calling one desires, or contract 
 as one chooses; that the term " liberty" means absence 
 of arbitrary restraint, not immunity from reasonable 
 regulations and prohibitions imposed in the interests 
 of the community. The principle was thus stated in 
 Frisbie v. United States, 157 U. S. 160; 15 Sup. Ct. 586; 
 39 L. Ed. 657: "A second objection, insisted upon now 
 as it was by demurrer to the indictment, is that the 
 act under which the indictment was found is uncon- 
 stitutional, because interfering with the price of labor 
 and the freedom of contract. This objection also is 
 untenable. While it may be conceded that, generally 
 speaking, among the inalienable rights of the citizen 
 is that of the liberty of contract, yet such liberty is 
 not absolute and universal. It is within the undoubted 
 power of government to restrain some individuals from 
 all contracts, as well as all individuals from some con- 
 tracts. It may deny to all the right to contract for
 
 CONSTITUTIONAL DECISIONS 737 
 
 Washington 
 
 the purchase or sale of lottery tickets; to the minor 
 the right to assume any obligations, except for the 
 necessaries of existence; to the common carrier the 
 power to make any contract releasing himself from 
 negligence; and, indeed, may restrain all engaged in 
 any employment from any contract in the course of 
 that employment which is against public policy. The 
 possession of this power by government in no manner 
 conflicts with the proposition that, generally speaking, 
 every citizen has a right freely to contract for the 
 price of his labor, services or property." 
 
 Again, in the case of Holden v. Hardy, 169 U. S. 366; 
 18 Sup. Ct. 383; 42 L. Ed. 780, the court, holding con- 
 stitutional the statute of the State of Utah fixing the 
 number of hours a workingman should be permitted 
 to work continuously in underground mines, used this 
 language: "This right of contract, however, is itself 
 subject to certain limitations which the State may 
 lawfully impose in the exercise of its police powers. 
 While this power is inherent in all governments, it has 
 doubtless been greatly expanded in its application dur- 
 ing the past century, owing to an enormous increase 
 in the number of occupations which are dangerous, 
 or so far detrimental to the health of employe's as to 
 demand special precautions for their well-being and 
 protection, or the safety of adjacent property. While 
 this court has held, notably in the cases of Davidson v. 
 New Orleans, 96 U. S. 97; 24 L. Ed. 616, and Yick Wo v. 
 Hopkins, 118 U. S. 356; 6 Sup. Ct. 1064; 30 L. Ed. 220, 
 that the police power cannot be put forward as an ex- 
 cuse for oppressive and unjust legislation, it may be 
 lawfully resorted to for the purpose of preserving the 
 public health, safety, or morals, or the abatement of 
 47
 
 738 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 public nuisances, and a large discretion 'is necessarily 
 vested in the legislature to determine not only what 
 the interests of the public require, but what measures 
 are necessary for the protection of such interests.' " 
 
 So in State v. Buchanan, 29 Wash. 602; 70 Pac. 52; 
 59 L. R. A. 342; 92 Am. St. Rep. 930, this court, holding 
 constitutional the act limiting the number of hours 
 women could be required to work in one day in mechani- 
 cal and mercantile establishments, said: "Law is, or 
 ought to be, a progressive science. While the principles 
 of justice are immutable, changing conditions of society 
 and the evolution of employment make a change in 
 the application of principles absolutely necessary to an 
 intelligent administration of government. In the early 
 history of the law, when employments were few and 
 simple, the relative conditions of the citizen and the 
 State were different, and many employments and uses 
 which were then considered inalienable rights have 
 since, from the very necessity of changed conditions, 
 been subjected to legislative control, restriction, and 
 restraint. This all flows from the old announcement 
 made by Blackstone that when man enters into society, 
 as a compensation for the protection which society 
 gives to him, he must yield up some of his natural rights, 
 and, as the responsibilities of the government increase, 
 and a greater degree of protection is afforded to the 
 citizen, the recompense is the yielding of more individual 
 rights. Transportation companies are now controlled 
 and restricted, where a few years ago they claimed 
 the right to transact their business exactly as it suited 
 their private interests. The practice of medicine is 
 restricted and controlled. Laws against quackery and 
 empiricism are enforced without question. The sale of
 
 CONSTITUTIONAL DECISIONS 739 
 
 Washington 
 
 liquor, which formerly was a legitimate business, and 
 which the citizen had a right to enter into, as he did 
 any other business, without any restrictions, has now 
 become subject to the control of the State, or to actual 
 prohibition at the will of the State. The changing 
 conditions of society have made an imperative call 
 upon the State for the exercise of these additional 
 powers, and the welfare of society demands that the 
 State should assume these powers, and it is the duty 
 of the court to sustain them whenever it is found that 
 they are based upon the idea of the promotion and 
 protection of society.' 
 
 If, therefore, the act in controversy has a reasonable 
 relation to the protection of the public health, morals, 
 safety or welfare, it is not to be set aside because it 
 may incidentally deprive some person of his property 
 without fault or take the property of one person to pay 
 the obligations of another. To be fatally defective in 
 these respects, the regulation must be so utterly un- 
 reasonable and so extravagant in nature and purpose 
 as to capriciously interfere with and destroy private 
 rights. 
 
 That the statute here in question has the attribute 
 of reasonableness, rather than that of capriciousness, 
 seems incontrovertible. The evil it seeks to remedy is 
 one that calls loudly for action. Accidents to workmen 
 engaged in the industries enumerated in it are all but 
 inevitable. It seems that no matter how carefully 
 laws for the prevention of accidents in such industries 
 may be framed, or how rigidly they may be enforced, 
 there is an element of human equation that enters into 
 the problem which cannot be eliminated and which 
 invariably causes personal injuries and consequent
 
 740 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 financial losses to workmen engaged therein. Hereto- 
 fore these losses have been borne by the injured work- 
 men themselves, by their dependents, or by the State 
 at large. It was the belief of the legislature that they 
 should be borne by the industries causing them, or, per- 
 haps more accurately, by the consumers of the prod- 
 ucts of such industries. That the principle thus sought 
 to be put into effect is economically, sociologically 
 and morally sound, we think must be conceded. It 
 is so treated by the learned counsel who have filed 
 briefs in support of the auditor's contentions; it is so 
 conceded by all modern statesmen, jurists and economic 
 writers who have voiced their opinion on the subject; 
 and the principle has been enacted into law by nearly 
 all of the civilized countries of Europe, by Australia, 
 by New Zealand, by the Transvaal, by the principal 
 provinces of the Dominion of Canada, and in a partial 
 form at least by one or more of South American re- 
 publics. Indeed, so universal is the sentiment that to 
 assert to the contrary is to turn the face against the 
 enlightened opinion of mankind. The common law 
 does not purport to afford a remedy for the condition 
 here 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 the em- 
 ployer and there is want of fault on the part of the 
 workman. For the greater number of injuries traceable 
 to the dangers incident to industry, no remedy at all 
 is afforded. The act, therefore, having in its support 
 these economic and moral considerations, is not un- 
 constitutional for the reasons suggested upon this 
 branch of the argument. 
 Passing to the second objection, it is well settled
 
 CONSTITUTIONAL DECISIONS 741 
 
 Washington 
 
 that neither the clause of the state constitution pro- 
 hibiting class legislation, nor the clause of the Four- 
 teenth Amendment to the Constitution of the United 
 States relating to the equal protection of the laws, takes 
 from the State the power to classify in the adoption of 
 police regulations. The limitations imposed admit of a 
 wide discretion in this respect, and avoid only what is 
 done without any reasonable basis ; that is, such regula- 
 tions as are in their nature arbitrary. The learned coun- 
 sel for the auditor recognize this distinction and con- 
 sequently do not attack the act because it is confined 
 to extrahazardous occupations as its field of regulation, 
 but complain because its benefits are not confined 
 to workmen injured while engaged in such occupa- 
 tions. It is claimed that the act allows workmen em- 
 ployed in such industries the benefit of the act when 
 injured outside of the line of their duties, or when en- 
 gaged in the business of the concern in a capacity not 
 affected by the peculiar hazards of the business. We 
 have quoted enough of the statute to show that it is 
 somewhat obscure in these respects, but we are not 
 inclined to think the point fatal to the act, even though 
 we concede counsel's interpretation of it to be the 
 correct one. 
 
 In 27, the legislature has made it clear that it did 
 not intend the provisions relating to those who are en- 
 titled to partake of its benefits to be so far an integral 
 part of the act that it could not be eliminated in part 
 without destroying the act in its entirety. It is there 
 expressly provided that the adjudication of invalidity 
 of any part of the act shall not affect the validity of the 
 act as a whole or any other part thereof. This means 
 that the legislature intended the act to be enforced as
 
 742 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 far as it may be even though it might not be valid in its 
 entirety. It was competent for the legislature so to 
 provide. Anything it could have eliminated itself and 
 left an operative act can be eliminated by the courts 
 without destroying the entire act, if it is the will of the 
 legislature that the remaining parts of the act shall 
 stand after such elimination. So here, if it be true that 
 the legislature has gone too far in this direction, and 
 has attempted to include within its benefits certain 
 employes who cannot be included without including 
 employes generally, these can be omitted in the ad- 
 ministration of the act without the necessity of nullify- 
 ing the entire act. But whether any such workmen are 
 so improperly included we shall not here determine. 
 The question can best be met when it arises during the 
 course of the act's administration. 
 
 Again, it is said that the act violates the provisions 
 relating to class legislation because it diverts the con- 
 tributions exacted from the numerous industries to the 
 relief of a particular class of injured and disabled 
 workmen, instead of applying it to the relief of in- 
 jured workmen generally or applying it to the use of 
 the State at large. But to divert the money collected 
 in this manner to a special use is one of the preroga- 
 tives of legislation. 
 
 The right of the State to regulate any form of industry 
 arises from the fact that its pursuit affects injuriously 
 the health, safety, morals or welfare of the persons 
 engaged in it, or is inimical in some form to some por- 
 tion of the individuals of the community. It is not 
 necessary that it always affect injuriously the public 
 at large. On the contrary, it may be regulated if it 
 affects injuriously those engaged in it, or those brought
 
 CONSTITUTIONAL DECISIONS 743 
 
 Washington 
 
 in direct contact with it, even though its pursuit may 
 benefit generally the people of the State at large. Nor 
 is there any particular form which the regulation must 
 take. The conduct of the business may be prohibited 
 entirely in a particular place or in a particular manner; 
 its pursuit may be restricted to certain hours of the 
 day; it may be permitted to be conducted only in case 
 protective devices are used; or it may be permitted in 
 certain forms, and a sum of money exacted from the 
 individuals carrying it on for the purpose of recom- 
 pensing those who suffer losses because thereof. 
 
 So, in this instance, if the legislature believed that, 
 to permit the pursuit of the industries named after the 
 present manner of conducting them was generally for 
 the public good in spite of the losses the method of 
 pursuit entailed, there is no reason why it should not 
 confine its regulations to compelling the owners and 
 conductors of such industries to create a fund out of 
 w^hich the losses caused thereby should be made good. 
 That legislation in this form is not class legislation, 
 nor a denial to owners of property of the equal protec- 
 tion of the laws, is well sustained by authority. 
 
 In Jensen v. South Dakota Cent. Ry. Co., 25 S. D. 506; 
 127 N. W. 650, the court, discussing the question, used 
 this language: "The exercise of the police power in this 
 class of cases is based upon the ground that, w r here 
 persons are engaged in a calling or business attended 
 with danger to other persons and their property, then 
 the legislature may step in and impose conditions upon 
 the exercise of such calling or business for the general 
 good and welfare of society, and may prescribe the 
 terms on which such dangerous calling or business will 
 be permitted to be carried on by persons in charge
 
 744 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 thereof, whether such persons happen to be private 
 individuals or railway corporations. The fact that 
 such legislative exercise of the police power applies 
 alike to all persons and all corporations engaging in 
 such dangerous calling or business relieves it from the 
 charge and contention that there is a denial of equal 
 protection under the law by reason of such enactments." 
 In Firemen's Benevolent Assn. v. Lounsbury, 21 111. 
 511; 74 Am. Dec. 115, the court had under considera- 
 tion a statute of the State of Illinois which created a 
 corporation called the Firemen's Benevolent Associa- 
 tion, and required every insurance agent in the city of 
 Chicago to pay to the association a fixed percentage 
 upon the amount of fire insurance premiums collected 
 by him per year from fire insurance effected upon prop- 
 erty in the city, to be used solely for the relief of dis- 
 tressed, sick, injured, or disabled firemen and their 
 immediate families. Answering the objection that the 
 act was void as class legislation, the court said: " There 
 is nothing to be found in the Constitution which can 
 be held to inhibit the legislature from imposing burdens, 
 or raising money from citizens of the State, which is 
 not for the direct benefit of the State, and is never 
 designed to belong to the State. To deprive the legis- 
 lature of this power would to a great extent destroy its 
 usefulness while it would to a certain extent deprive 
 it of the power of abuse, it would destroy its power to 
 regulate by law a thousand things, which the public 
 good requires should be regulated by law. * * * Let 
 us once hold that the legislature could not compel any 
 citizen to submit to a burden, except for the benefit 
 of the State aggregate, or for some subdivision of it, 
 as a county, city, or town, or to pay any money except
 
 CONSTITUTIONAL DECISIONS 745 
 
 Washington 
 
 it shall go into the State or some subordinate public 
 treasury, and we should soon find ourselves on the 
 brink of anarchy itself we should tie up the hands of 
 the legislature, it is true, so that they might not do some 
 evils which they have hitherto had the power of doing; 
 but we should also let loose upon society 10,000 evils, 
 which in every well-regulated community it has always 
 been the duty of the legislature to suppress. It is in 
 the exercise of this indispensable power that ferries, 
 toll bridges, and the like are licensed or chartered. The 
 legislature, finding it necessary to afford special en- 
 couragement to private enterprise to erect a bridge or 
 a ferry, has ever exercised the power of imposing a 
 burden on some, for the benefit of others. Whoever 
 doubted the right of the legislature to charter a bridge 
 and to require all persons crossing the stream within 
 certain limits, to pay the tolls, whether they cross on 
 the bridge or not? It is the exercise of the same power, 
 which fixes the fees of officers for the performance of 
 certain services. It is the power which the legislature 
 possesses, of imposing burdens upon certain members 
 of the community who are supposed to be benefited 
 by the efforts or acts of certain other members of the 
 community, as a reward or compensation for such 
 acts. * * * It would fill a volume to enumerate all 
 the familiar instances of the exercise of this power a 
 power which must be exercised constantly in every 
 civilized community, or the well-being of that com- 
 munity must vitally suffer." 
 
 In State v. Cassidy, 22 Minn. 312; 21 Am. Rep. 765, 
 the court sustained an act which required the vendors 
 of intoxicating liquors to pay a fixed sum per annum 
 into the state treasury, in addition to the usual license
 
 746 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 fee, as a fund to be disbursed by a state commission 
 in the creation and operation of a state asylum for the 
 care and cure of inebriates. The court in its opinion 
 points out that the act is an exercise of police power, 
 saying: "It regards the traffic as one tending to pro- 
 duce intemperance, and as likely, by reason thereof, to 
 entail upon the State the expense and burden of pro- 
 viding for a class of persons rendered incapable of self- 
 support, the evil influence of whose presence and ex- 
 ample upon society is necessarily injurious to the pub- 
 lic welfare and prosperity, and therefore calls for such 
 legislative interposition as will operate as a restraint 
 upon the business, and protect the community from the 
 mischiefs, evils, and pecuniary burdens flowing from 
 its prosecution. * * * That these provisions unmis- 
 takably partake of the nature of police regulations, 
 and are strictly of that character, there can be no doubt, 
 nor can it be denied that their expediency or necessity 
 is solely a legislative, and not a judicial, question. * * * 
 Regarding the law as a precautionary measure, intended 
 to operate as a wholesome restraint upon the traffic, 
 and as a protection to society against its consequent 
 evils, the exacted fee is not unreasonable in amount, 
 and the purpose to which it is devoted is strictly perti- 
 nent and appropriate. It could not be questioned but 
 that a reasonable sum imposed in the way of an in- 
 demnity to the State against the expense of maintaining 
 a police force to supervise the conduct of those engaged 
 in the business, and to guard against the disorders and 
 infractions of law occasioned by its prosecution, would 
 be a legitimate exercise of the police power, and not 
 open to the objection that it was a tax for the purpose 
 of revenue, and therefore unconstitutional. Reclaim-
 
 CONSTITUTIONAL DECISIONS 747 
 
 Washington 
 
 ing the inebriate, restoring him to society, prepared 
 again to discharge the duties of citizenship, equally 
 promotes the public welfare, and tends to the accom- 
 plishment of like beneficial results, and it is difficult 
 to see wherein the imposition of a reasonable license fee 
 would be any the less a proper exercise of this power in 
 the one case than hi the other. The purpose to which 
 the license fund created by the act is designated is more 
 consonant to the idea of regulating the traffic and pre- 
 venting its evils than is the case under the general li- 
 cense law, which devotes the fees received to common 
 school purposes, and we are not aware that any ob- 
 jection has ever been urged against that law on that 
 account." 
 
 A statute of Kentucky imposed upon all dogs a tax at 
 a fixed sum per capita, to be paid by their owners, for 
 the creation of a fund to be disbursed to sheep growers 
 whose sheep should be injured or destroyed by the 
 ravages of dogs. In McGlone v. Womack, 129 Ky. 274; 
 111 S. W. 688; 17 L. R. A. (N. S.) 855, this statute was 
 challenged by a number of owners of dogs on the ground 
 that it violated the state constitution. Answering the 
 objection that it was class legislation the court said: 
 "Nor do we think the act is inimical to that portion of 
 3 of the Bill of Rights which provides: ' * * * And 
 no grant of exclusive, separate public emoluments or 
 privileges shall be made to any man or set of men, 
 except in consideration of public services. * As 
 
 we view it, the statute does not confer any special 
 privilege on the owner of sheep. It merely protects 
 these owners from the destruction of their property by 
 dogs. It is the duty of the State to protect every citizen 
 in his life, liberty and property; and it certainly is within
 
 748 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 the competency of the legislature to exercise the police 
 power of the State to protect all property against the 
 ravages of destructive animals. The question as to how 
 this is to be done and what property is to be so protected 
 is a matter of legislative discretion. Undoubtedly the 
 sheep industry is a most important one to the whole 
 State. All of our citizens are interested in any industry 
 which supplies the market with wholesome meat, pro- 
 vides means of obtaining warm and comfortable cloth- 
 ing, and at the same time furnishes labor to the other- 
 wise unemployed. It is only necessary to allude to 
 this phase of the question. The importance of the in- 
 dustry as a whole is most obvious. It is equally obvious 
 that sheep are peculiarly liable to the ravages of dogs. 
 They have neither the fleetness to escape nor the cour- 
 age to defend themselves from attack, and their silent 
 suffering enables the dog to prey upon them without 
 any danger that the owner will be warned of the de- 
 struction of his property by the outcry of the dying 
 animal. * * * The fact that sheep are generally killed 
 at night when it is impossible to ascertain the owner 
 of the dog committing the ravage makes it necessary, 
 if protection is to be had through this channel at all, 
 that each owner of a dog should be required to contrib- 
 ute a small amount to a common fund dedicated to 
 the remuneration of owners of sheep killed by unknown 
 dogs. As said before, this is simply requiring the 
 owners of dogs to make good the ravages of dangerous 
 animals kept by them; and no citizen has just cause of 
 complaint, if he keeps animals destructive to the prop- 
 erty of others, that he is required to make good the 
 damages done by them. The statute, in truth, is but an 
 enforcement of the maxim, Sic utere tuo ut alienum non
 
 CONSTITUTIONAL DECISIONS 749 
 
 Washington 
 
 Icedas, and, as such, its constitutionality is beyond 
 successful question." See, also, Leavitt v. Morris, 105 
 Minn. 170; 117 N. W. 393; 17 L. R. A. (N. S.) 984; 
 Mitchell v. Williams, 27 Ind. 62; Van Horn v. People, 
 46 Mich. 183; 9 N. W. 246; 41 Am. Rep. 159; Cole v. 
 Hall, 103 111. 30; Longyear v. Buck, 83 Mich. 236; 47 
 N. W. 234; 10 L. R. A. 43; Hoist v. Roe, 39 Ohio St. 
 340; 48 Am. Rep. 459; State v. Frame, 39 Ohio St. 399. 
 
 The foregoing cases, while defending the statute here 
 in question against the charge of class legislation, are 
 interesting from another aspect also. They furnish 
 examples of constitutional statutes creating liability 
 without fault. To effect insurance as an agent, to sell 
 intoxicating liquors where not forbidden by the State, 
 or to own and keep dogs, is not of itself unlawful, and 
 it would seem that any reason which would justify the 
 levying of a tax on persons pursuing these occupations 
 as business callings, or owning and keeping the species 
 of property mentioned, would justify the levy sought to 
 be made by the act before us. 
 
 The third principal objection to the constitutionality 
 of the act is that it violates the provisions of the Con- 
 stitution designed to secure equal and uniform taxation 
 of property for public purposes. As the charge laid on 
 the persons engaged in the industries named in the 
 act is a pecuniary burden imposed by public authority, 
 it partakes of the nature of a tax and, in the language 
 of a distinguished judge discussing a similar question, 
 "for many purposes might be so spoken of without 
 harm." But it is manifest that it is not a "tax" in 
 the sense the word is used in the sections of the Consti- 
 tution to which reference is here made. No accession 
 to the public revenue, general or local, is authorized or
 
 750 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 aimed at. The purpose of the exaction is entirely 
 different. It is to be used, not to meet the current 
 expenses of government, but to recompense employe's 
 of the industries on whom the burden is imposed for 
 injuries received by them while engaged in the pursuit 
 of their employment. It is the consideration which the 
 owners of the industries pay for the privilege of carrying 
 them on. It is therefore in the nature of a license tax, 
 and can be justified on the principle of law that justifies 
 the imposition and collection of license taxes generally. 
 
 In this State, such taxes may be imposed, either as a 
 regulation or for the purposes of revenue, the only 
 limitation upon the power being that such taxes when 
 imposed on useful trades and industries shall not be 
 unreasonable, and if a class of trades or industries is 
 selected from the whole, and the tax imposed upon the 
 class selected alone rather than upon the whole, that 
 there be some reasonable ground for making the dis- 
 tinction. Walla Walla v. Ferdon, 21 Wash. 308; 57 
 Pac. 796; Fleetwood v. Read, 21 Wash. 547; 58 Pac. 665; 
 47 L. R. A. 205; Stvtt v. De Mattos, 23 Wash. 71; 62 
 Pac. 451; 51 L. R. A. 892; Seattle v. Barto, 31 Wash. 141; 
 71 Pac. 735; In re Garfinkle, 37 Wash. 650; 80 Pac. 188; 
 Oilure Mfg. Co. v. Pidduck-Ross Co., 38 Wash. 137; 80 
 Pac. 276 ; McKnight v. Hodge, 55 Wash. 289 ; 104 Pac. 504. 
 
 The general rule governing the right to impose such 
 license taxes is well stated by Judge BREWER in Newton 
 v. Atchison, 31 Kan. 151; 1 Pac. 288; 47 Am. Rep. 486, 
 in the following language : " Before noticing some specific 
 objections which are made to this particular tax, we 
 think it proper to state certain general propositions 
 which underlie this matter of a license tax. First. In 
 the absence of any inhibition, express or implied, in
 
 CONSTITUTIONAL DECISIONS 751 
 
 Washington 
 
 the Constitution, the legislature has power, either di- 
 rectly to levy and collect license taxes on any business 
 or occupation, or to delegate like authority to a mu- 
 nicipal corporation. This seems to be the concurrent 
 voice of all the authorities. In 1 Dillon on Municipal 
 Corporations (3d Ed.), 357, note, the author says: 
 'Unless specially restrained by the Constitution, the 
 legislature may provide for the taxing of any occupa- 
 tion or trade, and may confer this power upon municipal 
 corporations.' In Burroughs on Taxation, p. 148, is 
 this language: 'Where the Constitution is silent on the 
 subject, the right of the State to exact from its citizens 
 a tax regulated by the avocations they pursue cannot 
 be questioned.' In Savings Society v. Coite, 6 Wall. 
 606; 18 L. Ed. 897, the Supreme Court of the United 
 States thus states the law: 'Nothing can be more cer- 
 tain in legal decision than that the privileges and fran- 
 chises of a private corporation, and all trades and avoca- 
 tions by which the citizens acquire a livelihood, may be 
 taxed by a State for the support of the state govern- 
 ment.' Hamilton Co. v. Massachusetts, 6 Wall. 638; 
 18 L. Ed. 904; Cooley on Taxation, 384-392, 410. On 
 page 384 the author observes: 'The same is true of 
 occupations; government may tax one, or it may tax 
 all. There is no restriction upon its power in this regard 
 unless one is expressly imposed by the Constitution.' 
 In State Tax on Foreign-held Bonds, 15 Wall. 300; 21 
 L. Ed. 179, FIELD, J., among other things, speaking of 
 the power of taxation, says : ' It may touch property in 
 every shape, in its natural condition, in its manufactured 
 form, and in its various transmutations. And the 
 amount of taxation may be determined by the value of 
 the property, or its use, or its capacity, or its productive-
 
 752 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 ness. It may touch business in the almost infinite 
 forms in which it is conducted; in professions, in com- 
 merce, in manufactures, and in transportation. Un- 
 less restrained by the Constitution, the power as to 
 the mode, forms, and extent of taxation is unlimited.' 
 See, also, the authorities collected in Fretwell v. City of 
 Troy, 18 Kan. 274. Nor does this rest alone upon a 
 mere matter of authority. Full legislative power is, 
 save as specially restricted by the Constitution, vested 
 in the legislature. Taxation is a legislative power. Full 
 discretion and control therefore in reference to it are 
 vested in the legislature, save when specially restricted. 
 There is no inherent vice in the taxation of avocations. 
 On the contrary, business is as legitimate an object 
 of the taxing power as property. Oftentimes a tax on 
 the former results in a more even and exact justice than 
 one on the latter. Indeed, the taxing power is not 
 limited to either property or avocations. It may, as 
 was in fact done during the late war and the years 
 immediately succeeding, be cast upon incomes, or 
 placed upon deeds and other instruments. We know 
 there is quite a prejudice against occupation taxes. 
 It is thought to be really double taxation. Judge DIL- 
 LON well says that ' such taxes are apt to be inequitable, 
 and the principle not free from danger of great abuse.' 
 Yet, wisely imposed, they will go far toward equalizing 
 public burdens. A lawyer and a merchant may, out 
 of their respective avocations, obtain the same income. 
 Each receives the same protection and enjoys the same 
 benefits of society and government. Yet the one having 
 tangible property pays taxes; the other, whose property 
 is all in legal learning and skill, wholly tangible, pays 
 nothing. A wisely-adjusted occupation tax equalizes
 
 CONSTITUTIONAL DECISIONS 753 
 
 \Yashington 
 
 these inequalities. But, after all, these are questions of 
 policy, and for legislative consideration. It is enough 
 for the courts that both occupation and property are 
 legitimate objects of taxation; that they are essentially 
 dissimilar; that constitutional provisions regulating the 
 taxation of one do not control that of the other; and 
 that there are no constitutional inhibitions on the 
 taxation of business, either by the legislature directly, 
 or by municipal corporations, thereto empowered by 
 the legislature. Second. There is no inhibition, express 
 or implied, in our Constitution, on the power of the legis- 
 lature to levy and collect license taxes, or to delegate 
 like power to municipal corporations. It is not pre- 
 tended that there is any express inhibition. It has been 
 contended that 1, article 11, creates an implied in- 
 hibition, and this because it reads that 'the legislature 
 shall provide for a uniform and equal rate of assess- 
 ment and taxation.' But that section obviously refers 
 to property, and not to license taxes." 
 
 In Fleetwood v. Reed, supra, this court discussing the 
 question whether taxation of this sort was prohibited 
 by the Constitution, said: "It is insisted, also, that the 
 ordinance is void because it imposes a burden upon a 
 portion, and not the whole, of a class of merchants. 
 We do not think this contention is tenable. The or- 
 dinance does apply to all merchants who see fit to en- 
 gage in the business of buying tickets of that kind, and 
 the constitutional provision (article 1, 12) that no law 
 shall be passed granting to any citizen, class of citizens, 
 or corporation other than municipal privileges, or 
 immunities which, upon the same terms, shall not 
 equally belong to all citizens or corporations, cannot be 
 invoked against this ordinance. The adjudicated cases 
 48
 
 754 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 in this respect are so numerous that it is scarcely worth 
 while to mention them here. The ordinance cannot 
 be held void on account of excessive burden imposed. 
 It is not so impressive that it will in any way interfere 
 with the rights of merchants. However wrong the 
 policy may be which prompted the enactment of this 
 ordinance, or however doubtful the propriety of passing 
 such an ordinance, those are questions which are sub- 
 mitted by the legislature to the discretion of the council, 
 and upon them it is not our province to comment. 
 We think, without further investigation, that there is 
 no doubt that the ordinance is warranted by legislative 
 authority. Some question was raised by the court at 
 the time of the argument of this case in relation to the 
 ordinance being in conflict with 1,2, and 9 of article 7 
 of the state constitution, which provide for uniformity 
 in taxation. Counsel for the respondent was requested 
 by the court to furnish it with a brief on that subject, 
 which he did, and upon an examination of the cases 
 cited and of other cases, we have become convinced 
 that the question raised by the court was not a question 
 pertinent in this case; that, under the great weight of 
 authority a tax on occupation, business, etc., is not, in 
 legal contemplation, a tax on property, which falls 
 within the inhibition imposed by the usual constitu- 
 tional provisions in relation to uniformity of taxation; 
 and, in consideration of the fact that the state consti- 
 tution is a limitation upon the actions and powers of the 
 legislature instead of a grant of power, that the power of 
 the legislature to tax trades, professions, and occupa- 
 tions is, in the absence of constitutional restriction, a 
 matter within its absolute control and resting entirely 
 in sound legislative discretion."
 
 CONSTITUTIONAL DECISIONS 755 
 
 Washington 
 
 The sums exacted from the several industries named 
 we think may be treated as partaking both of the nature 
 of a license for revenue and regulation; as such, how- 
 ever, we find nothing in the principle inimical to either 
 the state or Federal constitutions. 
 
 The fourth principal reason for which the act is 
 thought to be unconstitutional is that it interferes 
 with the right of trial by jury. It is said that the legis- 
 lature cannot fix a procrustean rule for the admeasure- 
 ment of damages arising from injuries received by one 
 in the employment of another, as the employer and the 
 employe alike have the right to submit to a jury both 
 the question of the right to recover for any such injury, 
 and the question of the amount that may be recovered 
 therefor. But we cannot think the rule absolute. It 
 may be that the legislature cannot fix the amount of 
 recovery, or provide for an absolute recovery, in all 
 cases where one person is injured by another, regardless 
 of the relation of the parties, or the question whether 
 the injury is or is not the result of negligence; but it 
 does not follow that it may not so provide where the 
 injury happens in that class of employments subject to 
 legislative regulation and control. If it be, as we have 
 attempted to show, a proper regulation of hazardous 
 industries to compel those engaged therein as owners 
 or operators to pay a fixed sum into a fund to be used 
 for the purpose of compensating the employes thereof 
 for injuries received by them, it is difficult to under- 
 stand why it is not also proper regulation to require the 
 employes of such industries to accept a given sum for 
 any injury they may receive while so engaged. The 
 same power that authorizes the State to regulate the 
 participation of the one in the particular industry would
 
 56 BRADBURYS WORKMENS COMPENSATION LAW 
 
 Washington 
 
 seem to authorize it to regulate the participation of 
 the other therein. Theoretically, of course, the em- 
 ployer and employe, on entering into a contract by 
 which the one engages the services of the other, stand 
 on the same plane, but in practice, as it is well known, 
 this ideal condition very seldom exists. Greed and 
 sagacity on the one side, and necessity and incapacity 
 on the other, sometimes lead to contracts that create 
 conditions little short of peonage; and our own reports 
 abound with instances where men have been induced 
 to work in situations so dangerous to life and limb that 
 the wonder is not that some of them were injured, but 
 rather that any of them escaped injury. Indeed, it is 
 a common thing for an employer, in defense of an action 
 of damages brought by his employe for injury received 
 in such a situation, to urge that the dangers of the 
 place were so obvious and apparent that the employe 
 was guilty of contributory negligence for working 
 therein. These conditions, we think, authorize the 
 interference of the legislature. The grounds upon 
 which the employer may be held to contribute to a 
 fund for the relief of all injuries sustained by his em- 
 ployes, whatever the cause, we have already stated. 
 The obligation of the employe to accept the conditions 
 of the statute can rest on like grounds, namely, the wel- 
 fare of the State. The relation being one of contract 
 between employer and employe, the State may make 
 it a condition of the contract that the employe" shall 
 accept a fixed sum for any injury he may receive while 
 engaged in the employment, whether the injury be the 
 result of the inherent dangers of the employment or 
 the result of some fault of his employer. 
 
 There is of course no direct authority supporting the
 
 CONSTITUTIONAL DECISIONS 757 
 
 Washington 
 
 contention that the right of trial by jury may be thus 
 taken away. There are, however, cases maintaining 
 principles more or less analogous to the principle thus 
 involved. Of these State v. Buchanan, 29 Wash. 602; 
 70 Pac. 52; 59 L. R. A. 342; 92 Am. St. Rep. 930, and 
 Holden v. Hardy, 169 U. S. 366; 18 Sup. Ct. 383; 42 
 L. Ed. 780, are illustrative. In these cases it is held 
 that the legislature may limit the number of hours a 
 workman shall be permitted to labor in certain classes 
 of employments, on the principle that to do so is to 
 protect the health of the individual workman and thus 
 contribute to the public welfare. If it be within the 
 rule of the police powers of the State to interfere with 
 the workman's personal freedom in this regard, it would 
 seem to be no greater stretch of power to go one step 
 further and provide that, if he be injured while so labor- 
 ing, he shall receive a sure award in a limited sum as 
 compensation for his injury and in lieu thereof shall 
 forego his common-law action in damages therefor. 
 
 The common-law system of making awards for per- 
 sonal injuries has no such inherent merit as to make 
 a change undesirable. While courts have often said 
 that the question of the amount of compensation to be 
 awarded for a personal injury is one peculiarly within 
 the province of the jury to determine, the remark has 
 been induced rather because no better method for solv- 
 ing the problem is afforded by that system, than be- 
 cause of the belief that no better method could be de- 
 vised. No one knows better than judges of courts of 
 nisi prius and of review that the common-law method 
 of making such awards, even in those instances to which 
 it is applicable, proves in practice most unsatisfactory. 
 All judges have been witnesses to extravagant awards
 
 758 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 made for most trivial injuries, and trivial awards made 
 for injuries ruinous in the nature; and perhaps no ver- 
 dicts of juries are interfered with so often by the courts 
 as verdicts making awards in such cases. There is no 
 standard of measurement that the court can submit 
 to the jury by which they can determine the amount 
 of the award. The test of reasonableness means but 
 little to the ordinary juror. Unused as he is generally 
 to witnessing the results of injuries, he is inclined to 
 measure his verdict by the amount of disorder he ob- 
 serves, rather than by the actual amount of disable- 
 ment the injury has caused. Nor is he aided in this 
 respect by the testimony of medical experts. Conflict- 
 ing as such testimony usually is, it tends rather to con- 
 fuse than enlighten him. Perhaps the whole difficulty 
 lies in the fact that the question is too much one of 
 opinion, and not enough of fact. It must be remem- 
 bered also that the remedy afforded by the common 
 law, as we have elsewhere remarked, can be applied 
 only in a limited number of cases of injury cases 
 where the injury is the result of negligence on the part 
 of the employer, not contributed to by the employe". 
 For the greater number of injuries the common law 
 affords no remedy at all. For this unscientific system 
 it is proposed to substitute a system which will make 
 an award in all cases of injury, regardless of the cause 
 or manner of its infliction ; limited in amount, it is true, 
 but commensurate in some degree to the disability 
 suffered. The desirability of this substitution is un- 
 questioned, and we believe that the legislature had the 
 power to make it without violating any principle of 
 the fundamental law. 
 
 The objection may be answered also in another way.
 
 CONSTITUTIONAL DECISIONS 759 
 
 Washington 
 
 The Constitution does not undertake to define what 
 shall constitute a cause of action, nor to prohibit the 
 legislature from so doing. The right of trial by jury 
 accorded by the Constitution, as applicable to civil 
 cases, is incident only to causes of action recognized 
 by law. The act here in question takes away the cause 
 of action on the one hand and the ground of defense on 
 the other and merges both in a statutory indemnity 
 fixed and certain. If the power to do away with a 
 cause of action hi any case exists at all in the exercise 
 of the police power of the State, then the right of trial 
 by jury is thereafter no longer involved in such cases. 
 The right of jury trial being incidental to the right of 
 action, to destroy the one is to leave the other nothing 
 upon which to operate. 
 
 The auditor also complains of the scheme adopted 
 by the legislature for correcting the evils they have 
 found to exist. It is said that the scheme is unduly 
 cumbersome; that its administration will prove un- 
 necessarily costly and burdensome to those whose 
 interests are affected by it, and will lead to public and 
 private abuses and consequent evils more dangerous 
 to the State than the evil that it is sought to correct. 
 
 But the courts are slow to inquire into the mere 
 wisdom of a statute. This question is so pre-eminently 
 one for the lawmaking branch of the government that 
 the courts will interfere only where there can be no 
 two opinions as to the mischievous and evil tendencies 
 of the act. The act in question here was framed by a 
 commission composed of men eminent for their ability, 
 who gave to the work extended consideration. It was 
 selected by the legislature from among a number of 
 proposed acts having a similar purpose submitted for
 
 760 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 their examination, and this, too, after its evil tendencies 
 had been fully pointed out by the representatives of 
 the different interests to be affected by it. In the light 
 of these facts, the court cannot do otherwise than put 
 it to the test of practice. Moreover, the question be- 
 comes one of less importance when it is remembered 
 that the sessions of the legislature are sufficiently close 
 together to enable that body to correct any evil influence 
 the enforcement of the act may have before it becomes 
 unduly harmful. 
 
 In the foregoing discussion we have not referred to 
 the decision of the Court of Appeals of the State of New 
 York in the case of Ives v. South Buffalo R. Co., 201 N. Y. 
 271; 94 N. E. 431, which holds the Workmen's Compen- 
 sation Act of that State to be in conflict with the due 
 process of law clause of the state constitution, and the 
 Fourteenth Amendment to the Constitution of the 
 United States. The case has, however, been the sub- 
 ject of extended consideration hi the briefs of counsel, 
 and it is urged upon by counsel for the auditor as con- 
 clusive of the questions at bar. The act the court there 
 had in review is dissimilar in many respects to the act 
 before us, and is perhaps less easily defended on eco- 
 nomic grounds. The principle embodied in the statutes 
 is, however, the same, and it must be conceded that 
 the case is direct authority against the position we 
 have here taken. We shall offer no criticism of the 
 opinion. We will only say that notwithstanding the 
 decision comes from the highest court of the first State 
 of the Union, and is supported by a most persuasive 
 argument, we have not been able to yield our consent to 
 the view there taken. 
 
 We conclude, therefore, that the act in question vio-
 
 CONSTITUTIONAL DECISIONS 761 
 
 Washington 
 
 lates no provision of either the state or Federal consti- 
 tutions, and that the auditor should give it effect. Let 
 the writ issue. 
 
 DUNBAR, C. J., and CROW, MORRIS, ELLIS, MOUNT, 
 PARKER and GOSE, JJ., concur. 
 
 CHADWICK, J. (concurring) : 
 
 This proceeding is prosecuted by the relator, a simple 
 contract creditor of the State. There is no party in 
 interest before us whose interest it is to challenge the 
 act of the legislature. This is a moot case, pure and 
 simple, and the right of the relator to recover is in no 
 way affected by the constitutional questions raised 
 by the parties and discussed by the court. The legisla- 
 ture having created the industrial insurance commis- 
 sion, its power to organize cannot be questioned by 
 anyone who is not affected by the terms of the law, 
 and such expenses as it may incur are proper charges 
 against the State and may be collected without refer- 
 ence to the power of the commission to levy a tribute 
 upon certain kinds of business, or to make disburse- 
 ment of the funds under the provisions of the act. 
 
 Without questioning or discussing the conclusions of 
 the court upon the first three propositions advanced, 
 with all of which I agree, the fourth proposition should 
 not now be decided for the very palpable reason that 
 our decision is binding upon no one, not even upon the 
 court. No one will contend that it is of any concern 
 to a furniture dealer who is seeking to collect his ac- 
 count whether an injured workman is to be deprived 
 of the right to submit his cause to a jury of his peers. 
 The principle is too important to be mooted by the
 
 762 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 court, for some day a real party in interest will be before 
 us either an employer who feels aggrieved at the 
 operation of the law, or a workman who has received 
 injuries which the accepted schedules will not compen- 
 sate. And we will be put to the duty of deciding the 
 case without reference to our present decision, so that 
 the Federal questions involved may pass for final hear- 
 ing to the Supreme Court of the United States. 
 
 The right to recover damages for personal injuries 
 suffered in consequence of the negligence of another 
 was an admitted right at common law, so that the ques- 
 tion whether the Seventh Amendment to the Consti- 
 tution of the United States, which preserves the right 
 of trial by jury in all cases maintainable at common 
 law which are begun in the courts of the United States, 
 would not compel a Federal court to ignore our statute, 
 and the consequent question, whether a party assessed 
 could be compelled to contribute to the indemnity fund 
 unless he is to be protected from all suits of like charac- 
 ter, becomes most material, and it is to be hoped that 
 we will have an early opportunity to meet these issues 
 in a proper case. 
 
 That the people of the State of Washington can take 
 away a right of action, or abolish the right of trial by 
 jury, I have no doubt; but whether the legislature can 
 do so without the warrant of the whole people expressed 
 byway of amendment or repeal of 3 and 21 of article 1 
 of the state constitution is a grave question which is 
 not discussed in the opinion of the court. The right of 
 trial by jury has ever been regarded as the very sinew 
 of liberty. It was the cardinal principle of the great 
 charter, and "it is worthy of note that all that is extant 
 of the legislation of the Plymouth Colony for the first
 
 CONSTITUTIONAL DECISIONS 763 
 
 Washington 
 
 five years consists of the single regulation 'that all 
 criminal facts, and also all manner of trespasses and 
 debts between man and man, shall be tried by the 
 verdict of twelve honest men, to be impaneled by au- 
 thority, in form of a jury upon their oath.' 1 Palfrey's 
 New England, 340." Cooley's Const. Limitations 
 (6th ed.), P- 389, note. 
 
 The right is asserted in every state constitution. 
 Section 21, supra, provides that "the right of trial by 
 jury shall remain inviolate." No distinction is made 
 between civil and criminal cases ; indeed, the additional 
 text would indicate that no distinction was intended. 
 This guaranty has been held by this court to apply to 
 all civil-law actions maintainable at common law. State 
 ex rel. Mullen v. Doherty, 16 Wash. 382; 47 Pac. 958; 
 58 Am. St. Rep. 39. I am a firm believer in trial by 
 jury and am of equal faith that the will of the people 
 as declared in their written Constitution is binding 
 upon legislatures as well as courts, until the people by 
 like adoption express a contrary will. We should not 
 decide otherwise except at the suit of a proper party. 
 
 The present law seems to be greatly to the advantage 
 of the employer for whom an easy method of discharg- 
 ing an obligation to his injured employe is provided, 
 but whether the legislature can take from the working- 
 man his right to have the amount of his compensation 
 fixed by an authority less than the very people, who 
 have said "the right of trial by jury shall remain in- 
 violate," is for future hearing. 
 
 I have not advanced these observations in the way of 
 objections, for the result of the court's opinion is a 
 consummation for which I have devoutly hoped ; but 
 to indicate merely that our decision upon the fourth
 
 764 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 proposition the right of trial by jury is not settled 
 by this decision and should not be so regarded, and 
 further, in the event that it be finally held that a jury 
 trial cannot be dispensed with, under our present Con- 
 stitution, that the objection may be easily overcome 
 without doing violence to the purpose or principle of 
 the act, and without amendment to the Constitution, 
 by providing that, in the event of a dispute as to the 
 amount of compensation, a jury shall be called to try 
 that issue, and that its verdict shall be conclusive. 
 
 Upon the fourth proposition, therefore, I reserve my 
 opinion until such time as its expression will have the 
 force of law. 
 
 There being no question that the relator has a right 
 to recover the amount due on its account, it follows 
 that the writ should issue. 
 
 STATE ex rel. WALLACE D. YAPLE v. D. S. CREAMER, 
 AS TREASURER OF THE STATE OF OHIO 
 
 (00 Ohio St. 000; 00 Cent. Rep. 000) 
 
 Constitutional law; Workmen's Compensation Act; police 
 power; due process of law; trial by jury; freedom of contract; 
 impairing obligation of contract; classification of industries 
 
 1. The Workmen's Compensation Act providing for a classi- 
 fication of certain industries where five or more workmen 
 are employed, establishing a state insurance fund by 
 premiums to be paid at the rate of ninety per cent by the 
 employers and ten per cent by the workmen and creating 
 a State Liability Board of Awards to administer such fund 
 and providing that as to employers who do not accept the 
 compensation principle that certain common-law defenses
 
 CONSTITUTIONAL DECISIONS 765 
 
 Ohio 
 
 shall be abolished in actions by their workmen, is a valid 
 exercise of the police power of the legislature and is not 
 unconstitutional as taking private property without due 
 process of law contrary to the Fourteenth Amendment of 
 the Federal Constitution; nor is it invalid as violating the 
 right to a trial by jury, nor that it deprives parties of the 
 freedom of contract or impairs the obligation of contracts, 
 nor that it makes an unjust and arbitrary classification of 
 industries for the purposes of the statute. 
 
 The relator, a member of the State Liability Board 
 . of Awards, filed his petition in mandamus to compel the 
 defendant treasurer to issue his warrant to pay an ac- 
 count for expenses incurred by relator as such member, 
 a,nd in performance of his duties under the law passed 
 May 31, 1911, approved June 15, 1911, to "Create 
 a State Insurance Fund for the benefit of injured, and 
 the dependents of killed employe's, and to provide for 
 administration of such fund," etc. 
 
 Defendant has filed a demurrer to the petition and 
 thus challenges the constitutionality of the act referred 
 to 
 
 Mr. Timothy S. Hogan, attorney general, Mr. C. D. 
 Laylin, Mr. Frank Davis, Jr., Mr. J. Harrington Boyd, 
 Mr. W. D. Yaple, Mr. James I. Boulger, Mr. D. J. 
 Ryan, Mr. J. L. Hampton and Mr. George B. Okey, 
 for relator. 
 
 Messrs. Lentz, Karns, Linton & Hengst, Mr. S. H. 
 Tolks, Mr. H. B. Arnold, Mr. H. H. McKeehan, Messrs. 
 M. B. & H. H. Johnson, Mr. T. H. Hogsett, Messrs. 
 Outhwaite, Linn & Thurman, Mr. D. N. Postlewaite, 
 Mr. Theodore W. Reath, Mr. F. M. Rwings and Mr. 
 Henry Bannon, for respondent.
 
 766 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 JOHNSON, J. : 
 
 The statute in question provides for the creation of 
 a State Liability Board of Awards, which shall estab- 
 lish a state insurance fund, from premiums paid by 
 employers and employes in the manner provided in the 
 act. It provides a plan of compensation for injuries, 
 not willfully self-inflicted, resulting from accidents to 
 employes of employers, both of whom have voluntarily 
 contributed to the fund in the proportion of ten and 
 ninety per cent respectively. It applies only where 
 the employer has five or more operators regularly in 
 the same business or in or about the same establish- 
 ment. An employer who complies with the act is re- 
 lieved from liability to respond in damages at common 
 law, or by statute, for injury or death of an employe 
 who has complied with its provisions, except when the 
 injury arises from the willful act of himself or officer or 
 agent, or from failure to comply with any law or or- 
 dinance providing for the protection of life and safety 
 of employes, in which event the employe or his repre- 
 sentatives have their election between a suit for dam- 
 ages and a claim under the act. Employers of five or 
 more who do not pay premiums into the fund are de- 
 prived in actions against them of the common-law de- 
 fenses of the fellow-servant rule, the assumption of 
 risk and of contributory negligence. Where the parties 
 are operating under the act, the injured employ^ and 
 his dependents in case of death, are compelled to accept 
 compensation from the insurance fund in the manner 
 provided, except in the cases above set forth. 
 
 The objections to the validity of the act are stated 
 by different counsel at the bar, and in their briefs, 
 under various heads. All of them are substantially
 
 CONSTITUTIONAL DECISIONS 767 
 
 Ohio 
 
 comprised in the following: First. That it is an un- 
 warranted exercise of the police power and directs the 
 State to use public funds for private purposes. Second. 
 That 20-1 and 21-1 take private property without 
 due process of law in contravention of 15, 16 and 19 
 of article 1 of the constitution of Ohio, and the Four- 
 teenth Amendment to the Constitution of the United 
 States, in that it deprives employers of the defense of 
 assumption of risk, and deprives the employe of part 
 of his wages to be paid to the state insurance fund, of the 
 right to sue for injuries sustained, of recourse to the 
 courts and of a trial by jury. Third. That it deprives 
 parties of the freedom of contract and impairs the 
 obligations of contracts. Fourth. That it makes an 
 unjust and arbitrary classification and does not affect 
 all who are within its reason. 
 
 Sections 20-1 and 21-1 are as follows, viz.: 
 "Sec. 20-1. Any employer who employs five or more 
 workmen or operatives regularly in the same business 
 or in or about the same establishment who shall pay 
 into the state insurance fund the premiums provided 
 by this act, shall not be liable to respond in damages 
 at common law or by statute, save as hereinafter pro- 
 vided, for injuries or death of any such employe", wher- 
 ever occurring, during the period covered by such 
 premiums, provided the injured employe has remained 
 in his service with notice that his employer has paid 
 into the state insurance fund the premiums provided 
 by this act; the continuation in the service of such 
 employer with such notice, shall be deemed a waiver 
 by the employe of his right of action as aforesaid. 
 
 "Each employer paying the premiums provided by 
 this act into the state insurance fund shall post in con-
 
 768 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 spicuous places about his place or places of business 
 typewritten or printed notices stating the fact that he 
 has made such payment; and the same, when so posted, 
 shall constitute sufficient notice to his employes of the 
 fact that he has made such payment ; and of any subse- 
 quent payments he may make after such notices have 
 been posted. 
 
 "Sec. 21-1. All employers who employ five or more 
 workmen or operatives regularly in the same business, 
 or in or about the same establishment who shall not 
 pay into the state insurance fund the premiums pro- 
 vided by this act, shall be liable to their employes for 
 damages suffered by reason of personal injuries sus- 
 tained in the course of employment caused by the 
 wrongful act, neglect or default of the employer, or 
 any of the employer's officers, agents or employes, and 
 also to the personal representatives of such employes 
 where death results from such injuries and in such ac- 
 tion the defendant shall not avail himself or itself of 
 the following common-law defenses 
 
 "The defense of the fellow-servant rule, the defense 
 of the assumption of risk, or the defense of contributory 
 negligence." 
 
 The law was passed after a report referred to in the 
 briefs of a commission appointed by the governor, in 
 obedience to a statute passed for that purpose. The 
 report was prepared after an exhaustive research into 
 industrial conditions in many countries, and an exami- 
 nation of laws, which have been passed in the effort 
 to improve such conditions. Substantially its conclu- 
 sions are, that the system which has been followed in 
 this country, of dealing with accidents in industrial 
 pursuits, is wholly unsound, that there is an intelligent
 
 CONSTITUTIONAL DECISIONS 769 
 
 Ohio 
 
 and widespread public sentiment which calls for its 
 modification and improvement and that the general 
 welfare requires it. That there has been enormous 
 waste under the present system, and that the action 
 for personal injuries by employe against employer no 
 longer furnishes a real and practical remedy, annoys 
 and harasses both, and does not meet the economic 
 and social problem which has resulted from modern 
 industrialism. Conceding the desirability of improve- 
 ment, of legislative and governmental action, and the 
 good results in other countries which have no written 
 constitution to limit the legislative power, we in this 
 country have the problem of devising a plan which 
 shall not infringe the fundamental law. 
 
 It is apparent, from a contemplation of the whole 
 enactment and its scope and purpose, as well as of 
 the participation of the State in its administration, 
 that it must find its validity, if at all, in the police 
 power of the State. 
 
 There is now r (it can be fairly said) general con- 
 currence in the meaning of the term " Police Power" 
 and as to its extent. 
 
 Professor Freund in his work says at 2: "The term 
 1 Police Power ' has never been circumscribed. It means 
 at the same tune a power and function of government, 
 a system of rules and an administrative organization 
 and force." And in 3, after discussing its nature and 
 aims, he says: "It will reveal the police power not as 
 a fixed quantity, but as the expression of social, eco- 
 nomic and political conditions. As long as these condi- 
 tions vary, the police power must continue to be elastic, 
 i. e., capable of development." 
 
 In The State ex rel. Monnett v. Pipe Line Co., 61 Ohio 
 49
 
 770 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 St. 520, as to the constitutionality of the Ohio Anti- 
 Trust Law, it is said: "The definite proposition of coun- 
 sel upon this point is that although the act is the exer- 
 cise of legislative power, it transcends the provisions of 
 the state and Federal constitutions, which render in- 
 violable the rights of liberty and property, which in- 
 clude the right to make contracts. It would be difficult 
 to place too high an estimate upon these guaranties, 
 and they include the right to make contracts. But it is 
 settled that these guaranties are themselves limited by 
 the public welfare or the exercise of the police power." 
 
 In Phillips v. State, 77 Ohio St. 215, it is said: "It 
 is almost an axiom that anything which is reasonable 
 and necessary to secure the peace, safety, morals and 
 best interest of the commonwealth may be done under 
 the police power; and this implies that private rights 
 exist subject to the public welfare. These principles 
 are plainly recognized in Article XIV, 1, of the Con- 
 stitution of the United States, and article 1, 19, of 
 the constitution of Ohio." 
 
 The cases of Noble v. Haskell, 219 U. S. 104, and 
 Bank v. Dolley, 219 U. S. 121, involved the constitu- 
 tionality of laws enacted by Oklahoma and Kansas, 
 in the exercise of the police power to establish bank 
 depositors' guaranty funds created by levy on each 
 of the banks. Objection was made that the tax was an 
 appropriation of the property of one bank to pay the 
 debts of another without due process of law. Mr. Jus- 
 tice HOLMES said: "The substance of the plaintiff's ar- 
 gument is that the assessment takes private property 
 for private use without compensation. * * * Never- 
 theless, notwithstanding the logical form of the objec- 
 tion, there are more powerful considerations on the
 
 CONSTITUTIONAL DECISIONS 771 
 
 Ohio 
 
 other side. In the first place, it is established by a series 
 of cases that an ulterior public advantage may justify 
 a comparatively insignificant taking of private property 
 for what, in its immediate purpose, is a private use. * * * 
 It may be said in a general way that the police power 
 extends to all the great public needs. Canfield v. United 
 States, 167 U. S. 518. It may be put forth in aid of 
 what is sanctioned by usage, or held by the prevailing 
 morality or strong and preponderant opinion to be 
 greatly and immediately necessary to the public wel- 
 fare." 
 
 We think it clear, that the objects and purposes as 
 above set forth, which the legislature contemplated 
 in the passage of the law in question, are sufficient to 
 sustain the exercise of the police power, and the partic- 
 ipation of the State in the manner provided. Whether 
 the plan adopted is the most appropriate or best cal- 
 culated to accomplish those objects are matters with 
 which the court is not concerned and the law should 
 not be held to be invalid unless clearly in violation of 
 some provisions of the Constitution. 
 
 It is urgently insisted that while the law is apparently 
 permissive and leaves its operations to the election of 
 employers and employes, it is really coercive and upon 
 this premise much persuasive argument against the 
 validity of the law is based. This is an important 
 question in the case. 
 
 An examination of the sections touching the ques- 
 tions made is here necessary. 
 
 After providing in 20-1 that an employer who elects 
 to comply with the act shall be relieved from liability 
 to the employe at common law, or by statute (except 
 as provided in 21-2) it is then enacted hi 21-1,
 
 772 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 "All employers who shall not pay into the insurance 
 fund, etc., shall be liable to their employe's for damages, 
 etc., caused by the wrongful act, neglect or default of 
 the employer, his agents," etc., and in such cases the 
 defenses of assumption of risk, fellow servant and con- 
 tributory negligence are not available. So that an em- 
 ployer who elects not to come into the plan of insurance 
 may still escape liability if he is not guilty of wrongful 
 act, neglect or default. His liability is not absolute 
 as in the case of the New York statute hereinafter 
 referred to. And it cannot be said that the withdrawal 
 of the defenses of assumption of risk, fellow servant 
 and contributory negligence as against an employer 
 who does not go into the plan, is coercive, for such 
 withdrawal is in harmony with the legislative policy 
 of the State for a number of years past. The law known 
 as the Norris law, passed in 1910, withdrew these de- 
 fenses in the particulars covered by the law. 
 
 As to the employe", if the parties do not elect to oper- 
 ate under the act, he has his remedy for the neglect, 
 wrongful act or default of his employer and agents as 
 before the law was passed, and is not subject to the 
 defenses named. 
 
 If the parties are operating under the act the employe" 
 contributes to an insurance fund for the benefit of 
 himself or his heirs, and in case he is injured or killed, 
 he or they will receive the benefit even though his in- 
 jury or death was caused by his own negligent or wrong- 
 ful act, not willful. And that is not all. Under 21-2 
 if the parties are operating under the act and the em- 
 ploye is injured or killed, and the injury arose from the 
 willful act of his employer, his officer or agent, or from 
 failure of the employer or agent to comply with legal
 
 CONSTITUTIONAL DECISIONS 773 
 
 Ohio 
 
 requirements, as to safety of employe's, then the in- 
 jured employe or his legal representative has his option 
 to claim under the act or sue in court for damages. 
 
 Therefore, the only right of action which this statute 
 removes from the employe is the right to sue for mere 
 negligence (which is not willful or statutory) of his em- 
 ployer, and it is within common knowledge that this 
 has become in actual practice a most unsubstantial 
 thing. It is conceded by counsel that the particulars 
 named in 21-2 are such, as form the basis for a large 
 portion of claims for personal injuries. 
 
 Many employers may elect to remain outside its 
 provisions; it would not be strange if many do so. On 
 the other hand, some workmen may feel disposed to 
 do likewise in spite of what would seem to be to their 
 manifest advantage in securing the benefits of the 
 insurance. However, if there should be such general 
 acceptance of and compliance with the statute as its 
 framers hope for, so as to bring a large part of the labor 
 employed in the industrial enterprises of the State 
 within its influence and operation, that would not 
 demonstrate its coercive character; on the contrary, it 
 would justify the enactment. Naturally time and ex- 
 perience will disclose imperfections and inefficiencies 
 in the plan, but if it should prove to be feasible, and 
 appropriate in a general way, these imperfections can 
 be corrected by the legislature. On account of the 
 common law and statutory rights still preserved to the 
 parties by this statute (as we have pointed out) in cases 
 where the election is made to come under its provisions 
 as well as not to do so, taken in connection with the 
 advantage to each which the plan contemplates, we 
 cannot say that the statute is coercive. As was said in
 
 774 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 the Wisconsin case: "Laws cannot be set aside upon 
 mere conjecture or speculation. The court must be 
 able to say with certainty that an unlawful result will 
 follow." We do not see how any such thing can be 
 said here. Every consideration of prudence and self- 
 interest (things not easily associated with compulsion 
 and coercion) would seem to lead an employe" to volun- 
 tarily make the contribution and waiver contemplated. 
 
 Second: Does this statute take private property 
 without due process of law and deny the guaranties 
 of the constitution as claimed? 
 
 Perhaps no exact definition of "due process of law" 
 has been agreed upon. Judge STORY defines it in his 
 work on the Constitution, 1935: "The right to be 
 protected in life and liberty and in the acquisition of 
 property under equal and impartial laws, which govern 
 the whole community. This puts the State upon its 
 true foundation, for the establishment and administra- 
 tion of general justice, justice of law, equal and fixed, 
 recognizing individual rights and not impairing them." 
 In Cooley on Const. Lim., 356, it is said : " Due process 
 of law in each particular case, means such an exercise 
 of the government as the settled maxims of the law per- 
 mit and sanction, and under such safeguards for the 
 protection of individual rights as those maxims prescribe 
 for the classes of cases to which the one in question 
 belongs." 
 
 The case of Ives v. South Buffalo Railway Co., 201 
 N. Y. 271 (relied on by some of counsel), involved a 
 statute different in many essentials from the Ohio law. 
 Its controlling feature was that every employer engaged 
 in any of the classified industries should be liable to a 
 workman for injury arising in the course of the work by
 
 CONSTITUTIONAL DECISIONS 775 
 
 Ohio 
 
 a necessary risk inherent in the business whether the 
 employer was at fault or not and whether the employe 
 was at fault or not, except when his fault was willful. 
 
 The court held the law invalid, as imposing the 
 ordinary risks of a business (which under the common 
 law the employe" was held to assume) on the employer. 
 The court states one of the premises on which it pro- 
 ceeds as follows: "When our constitutions were adopted, 
 it was the law of the land that no man who was without 
 fault or negligence could be held liable in damages for 
 injuries sustained by another." 
 
 But that rule was not of universal application. At 
 common law one may sustain such relation to the 
 inception of an undertaking that he will be held liable 
 for negligence in the progress of the enterprise, even 
 though he have no part or connection with the negli- 
 gent act itself which caused the injury. Such for in- 
 stance, as where the owner of property contracts with 
 an independent contractor to do work which though 
 entirely lawful, yet has inherent probabilities of harm 
 if negligently performed. The position in the line of 
 causation which employers sustain in modern industrial 
 pursuits is of course the basic fact on which Employers' 
 Liability Laws rest. 
 
 As to the right to abolish the defense of assumption 
 of risk, it is enough to say here that the great weight of 
 authority is against the New York position and the 
 position of such of the counsel in this case as insist on 
 that rule. Some of counsel appearing against the valid- 
 ity of this law, concede the right to abolish the defenses 
 referred to. The Supreme Courts of Massachusetts, 
 Wisconsin and Washington have recently he.ld in cases 
 sustaining the validity of statutes similar to the one
 
 776 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 here attacked, that it is within the legislative power to 
 abolish the defense referred to. In re Opinion of Jus- 
 tices, 96 N. E. Rep. 308 (Mass.) ; Borgnis v. Falk, 133 
 N. W. Rep. 209 (Wis.); State v. Clausen, 117 Pac. Rep. 
 1101 (Wash.). 
 
 Since the argument of this case the Supreme Court 
 of the United States has decided the case of Mondou v. 
 N. Y., New Haven & Hartford Railroad Co., 223 U. S. 1, 
 and has sustained the constitutionality of the Em- 
 ployers' Liability Law passed by Congress. The aboli- 
 tion of these rules was urged as an objection to the law. 
 The court say: "A person has no property, no vested 
 interest, in any rule of the common law. That is only 
 one of the forms of municipal law, and is no more sacred 
 than any other. Rights of property which have been 
 created by the common law cannot be taken away with- 
 out due process; but the law itself, as a rule of conduct, 
 may be changed at the will * * * of the legislature, 
 unless prevented by constitutional limitations. Indeed, 
 the great office of statutes is to remedy defects in the 
 common law as they are developed, and to adapt it 
 to the changes of time and circumstances." Munn v. 
 Illinois, 94 U. S. 113; Martin v. Pittsburg & Lake Erie 
 R. R. Co., 203 U. S. 284, 294; The Lottawanna, 21 Wall. 
 558, 577; Western Union Telegraph Co. v. Commercial 
 Milling Co., 218 U. S. 406, 417. 
 
 The recent case of State v. Boone, 84 Ohio St. 346, is 
 cited as indicating limitations of the police power which 
 apply here. The act involved in that case required the 
 physician in attendance on a case of confinement to 
 investigate and certify without compensation to cer- 
 tain facts which would not naturally come within the 
 knowledge of the attending physician, and as to mat-
 
 CONSTITUTIONAL DECISIONS 777 
 
 Ohio 
 
 ters wholly outside the scope of his professional duty. 
 The court held the statute unconstitutional as to phy- 
 sician and midwife because of an unreasonable and 
 arbitrary exercise of the police power. That was the 
 proposition of law decided in that case and no other 
 proposition was decided. The court was careful to 
 point out in the opinion and also on application for re- 
 hearing that the State might require the physician to 
 report to proper authority, facts which would come 
 naturally under his observation in the line of his duty 
 without compensation. Other matters referred to in 
 the opinion were not included in the syllabus which 
 stated the law decided by the court. 
 
 The court remarks that the police power inheres in 
 the sovereignty. Its foundation "is the right and duty 
 to provide for the common welfare of the governed." 
 Manifestly the reasoning which led to the conclusion 
 in that case that the statute had been passed by an 
 unreasonable exercise of the police power can have no 
 application here. 
 
 State v. Hubbard, 22 C. C. 253, affirmed without 
 report, in 65 Ohio St. 574, and State v. Guilbert, 56 Ohio 
 St. 575, involving the validity of statutes creating a 
 teachers' pension fund and the Torrens law to estab- 
 lish an insurance fund for the protection of land titles 
 concerned laws which were wholly compulsory with no 
 element of choice and were not claimed to have been 
 passed under the police power to cure undesirable public 
 conditions but for mere private benefit. These cases 
 can therefore have no relation to a plan adopted to 
 promote the general welfare, the contributions to which 
 are made after an election by the parties to participate 
 in the undertaking.
 
 778 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 It is urged by counsel opposing this law that the case 
 of Byers v. Meridian Printing Co., 84 Ohio St. 408, is 
 of conclusive weight condemnatory of the legislation 
 we are examining. 
 
 In that case it is ruled that an amendment to 5094, 
 Revised Statutes (changing the presumption of malice 
 and burden of proof in actions for libel where retraction 
 is made on demand, in the manner stated), is uncon- 
 stitutional. 
 
 The decision was put on the ground that plaintiff was 
 guaranteed his remedy by due course of law for an 
 injury done in his land, goods, person or reputation, 
 under article 1, 16, constitution of Ohio. When the 
 injury was done to the reputation of plaintiff by the 
 libel, he was entitled to his constitutional remedy at 
 law, but at the same time he was entitled to demand of 
 the publisher a retraction of the libel. Therefore the 
 legislature had no right to put him on his election as 
 to two courses both of which he was entitled to follow. 
 
 The court is careful to declare that it is not disposed 
 to question that a citizen may waive a constitutional 
 right. But being compelled to elect between two rights, 
 both of which a person is entitled to, has no resemblance 
 to waiver. But under the law under investigation here 
 as already shown, the right of action (for injury by 
 willful act of the employer and for his failure to comply 
 with requirements as to safety of employe's) is still 
 reserved to the employes. So that the only thing with- 
 drawn by this law, and to which withdrawal he consents 
 by his voluntary election to operate under the law, is 
 his right of action for mere negligence, and in place of it 
 he receives the substantial protections and privileges 
 under the state insurance fund.
 
 CONSTITUTIONAL DECISIONS 779 
 
 Ohio 
 
 It is stated in Butt v. Green, 29 Ohio St. 670, that 
 persons may expressly or impliedly waive either con- 
 stitutional or statutory provisions intended for their 
 benefit and as above shown the court, in the Byers case, 
 states it is not disposed to question that one may waive 
 a constitutional right. 
 
 We think that in a case such as is presented here, 
 in which the State itself has undertaken a great enter- 
 prise in the interest of the general good, and in the 
 exercise of its police power, and presents to its citizens 
 the option to join in the undertaking and receive its 
 protection and benefit, on a right of action being with- 
 drawn by the legislature, which experience has shown 
 to be difficult of practical enforcement, while preserving 
 the valuable and substantial kindred rights of action, 
 it cannot be said that in such withdrawal there is a 
 violation of the Constitution hi the respects claimed. 
 But it is insisted that the act delegates judicial power 
 to the Board of Awards, and denies recoufse to the 
 courts and trial by jury. 
 
 Of course if the board is a court there is an end of the 
 whole matter. The statute would be unconstitutional. 
 For if the board is a court it has not been created in ac- 
 cordance with the manner provided by the Constitution. 
 
 We do not consider the Board of Awards a court, 
 or invested with judicial power, within the meaning 
 of the Constitution. 
 
 It is created by the act purely as an administrative 
 agency to bring into being and administer the insurance 
 fund, and the fact that it is empowered to classify per- 
 sons who come under the law and to ascertain facts 
 as to the application of the fund, does not vest it with 
 judicial power within the constitutional sense.
 
 780 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 Under our system the executive department of the 
 government has many boards to assist in the administra- 
 tion of its affairs. 
 
 In State v. Hawkins, 44 Ohio St. 98, it is said: "What 
 is judicial power cannot be brought within the ring- 
 fence of a definition. It is undoubtedly power to hear 
 and determine, but this is not peculiar to the judicial 
 office. Many of the acts of administrative and execu- 
 tive officers involve the exercise of the same power." 
 The court then shows that many boards hear and 
 determine questions affecting private as well as public 
 rights, and quotes with approval from State v. Harmon, 
 31 Ohio St. 250: "The authority to ascertain facts and 
 apply the law to the facts when ascertained pertains 
 as well to other departments of government as to the 
 judiciary." 
 
 These principles were applied in France v. State, 
 57 Ohio St. 1, in which case the court remark that the 
 case of State v. Guilbert, 56 Ohio St. 576, forms no ex- 
 ception, for the powers of the recorder under the statute 
 there in question were essentially those which properly 
 belonged to a court. Does the law deny recourse to 
 the courts and trial by jury? 
 
 How does it affect an injured employe where the 
 parties are operating under the act? In Railroad Co. v. 
 Stankard, 56 Ohio St. 232, which was a suit by the 
 beneficiaries of a member of the relief department of 
 the railroad, the company answered setting up a rule 
 which provided that the decision of the relief depart- 
 ment should be final. The court says, "The right to 
 appeal to the courts for redress of wrongs is one of those 
 rights which in its nature under our constitution is in- 
 alienable and cannot be thrown off or bargained away."
 
 CONSTITUTIONAL DECISIONS 781 
 
 Ohio 
 
 But the court shows that parties may contract to 
 submit the fixing of facts to some nonjudicial tribunal 
 and say: "In insurance and other like cases where the 
 ultimate question is the payment of a certain sum of 
 money, certain facts may be fixed by a person selected 
 for that purpose in the contract, but the ultimate ques- 
 tion as to whether the money shall be paid or not may 
 be litigated in the courts and a stipulation to the con- 
 trary is void." 
 
 So that under that rule the parties may conclusively 
 bind themselves in advance to submit questions of 
 amount, etc., to some tribunal other than a court, but 
 the ultimate question of actual liability cannot be re- 
 moved from the courts. 
 
 Now, in this statute, 36 is as follows : 
 
 "Sec. 36. The board shall have full power and au- 
 thority to hear and determine all questions within its 
 jurisdiction, and its decision thereon shall be final. 
 
 "Provided, however, in case the final action of such 
 board denies the right of the claimant to participate 
 at all in such fund * * * upon any * * * ground 
 going to the basis of the claimant's right, then the claim- 
 ant within thirty (30) days after the notice of the final 
 action of such board may, by filing his appeal in the 
 common pleas court of the county wherein the injury 
 was inflicted, be entitled to a trial in the ordinary way, 
 and be entitled to a jury if he demands it. In such a 
 proceeding, the prosecuting attorney of the county, 
 without additional compensation, shall represent the 
 state liability board of awards, and he shall be noti- 
 fied by the clerk forthwith of the filing of such ap- 
 peal. 
 
 "Within thirty days after filing his appeal, the ap-
 
 782 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 pellant shall file a petition in the ordinary form against 
 such board as defendant." 
 
 Therefore, if the board denies the claimaint's right 
 to participate in the fund on any ground going to the 
 basis of his claim, he may by filing an appeal and peti- 
 tion in the ordinary form be entitled to trial by jury, 
 the case proceeding as any other suit. 
 
 It is not an appeal in the sense of appealing from 
 one court to another, but is really the beginning of an 
 original suit. 
 
 As to this it must be remembered that the whole 
 proceeding is with and against the Board of Awards. 
 His claim is not against the employer. There is no 
 dispute between them. His (the employe's) claim is for 
 the benefits of the insurance fund. The Board of 
 Awards inquire into the matters pointed out in the stat- 
 ute, and in case of dispute as to whether there is any 
 ultimate right to " participate at all in such fund" he 
 has his recourse to the courts. 
 
 But he is not confined to that method of proceeding. 
 If he claims that the injury was caused by the willful 
 act of the employer or officer or agent or from failure 
 to comply with legal requirements as to safety of em- 
 ploye's, etc., he may waive his claim under the act and 
 sue in court for his damages. But in his petition in 
 such case he could not claim damages for mere negli- 
 gence, he having elected to waive that cause of action, 
 having elected, as it were, to assume the risk of his em- 
 ployer's mere neglect in return for the benefits and pro- 
 tection to himself and his heirs afforded by the terms 
 of the act. 
 
 Another objection that is urged against this statute 
 is, that it makes an unjust and arbitrary classification
 
 CONSTITUTIONAL DECISIONS 783 
 
 Ohio 
 
 and does not affect all who are within its reason as 
 required by 26, article 2, of the constitution of Ohio. 
 Under the law only employers of five or more are af- 
 fected by it. 
 
 SPEAR, J., in Steinkamp v. Cincinnati, 54 Ohio St. 
 295, remarked: "In order to be general and uniform 
 in operation, it is not necessary that the law should 
 operate upon every person in the State, nor in every 
 locality; it is sufficient, the authorities concede in hold- 
 ing, if it operates upon every person brought within 
 the relation and circumstances provided for, and in 
 every locality where the condition exists." 
 
 To same effect are Platt v. Craig, 66 Ohio St. 75; 
 Gentsch v. State, 71 Ohio St. 151; Railway Co. v. Hosier- 
 man, 72 Ohio St. 107. 
 
 We think the classification is reasonable and proper. 
 In the nature of the case the risks of any regular em- 
 ployment are less and the opportunity for avoiding 
 them better where an employe* is one of four than 
 when the number is larger. As was said by WINSLOW, 
 C. J., in Borgnis v. Folk, supra, "The difference in the 
 situation is not merely fanciful it is real." 
 
 Coal Co. v. Illinois, 185 U. S. 203, is a case in which a 
 classification was made under somewhat similar man- 
 ner, and was upheld. 
 
 Nor do we think it an objection that the law applies 
 only to workmen and operatives and not to all others. 
 This classification brings within the law all employes 
 within its reason. 
 
 As to the suggestion that this statute impairs the obli- 
 gations of contracts it is sufficient to say that it can of 
 course not affect contracts in existence and unexpired 
 at the time it is put into operation by any employer.
 
 784 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 It is suggested that this legislation makes a radical 
 step in our government policy not contemplated by 
 the Constitution, and which it is the duty of the court 
 to condemn. But it creates no new right or new remedy 
 for wrong done. 
 
 It is an effort to in some degree answer the require- 
 ments of conditions which have come in an age of in- 
 vention and momentous change. 
 
 The courts of the country, while firmly resisting en- 
 croachment on the constitutions in the past, have yet 
 found in their ample limits, sufficient to enable us to 
 meet the emergencies and needs of our development, 
 and we do not find that this statute goes beyond the 
 bounds put upon the legislative will. 
 
 The act entitled "An act to create a state insur- 
 ance fund for the benefit of injured and the dependents 
 of killed employes," etc., 102 0. L. 524, is a valid ex- 
 ercise of legislative power not repugnant to the Fed- 
 eral or state constitutions, or to any limitation con- 
 tained in either. 
 
 The demurrer to the petition will be overruled and 
 the writ of mandamus awarded. 
 
 SPEAR, PRICE AND DONAHUE, JJ., concur. 
 Decided February 6, 1912.
 
 CONSTITUTIONAL DECISIONS 785 
 
 United States Supreme Court 
 
 SECOND EMPLOYERS' LIABILITY CASES l 
 223 U. S. 1 
 
 MONDOU v. NEW YORK, NEW HAVEN & HARTFORD 
 RAILROAD Co. (p. 788) 
 
 ERROR TO THE SUPREME COURT OF ERRORS OF THE 
 STATE OF CONNECTICUT 
 
 NORTHERN PACIFIC RAILWAY Co. v. BABCOCK (p. 789) 
 
 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES 
 FOR THE DISTRICT OF MINNESOTA 
 
 NEW YORK, NEW HAVEN & HARTFORD RAILROAD Co. 
 v. WALSH (p. 790) 
 
 WALSH v. NEW YORK, NEW HAVEN & HARTFORD 
 RAILROAD Co. (p. 790) 
 
 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES 
 FOR THE DISTRICT OF MASSACHUSETTS 
 
 Nos. 120, 170, 289, 290. Argued February 20, 21, 1911. Decided 
 January 15, 1912 
 
 The Employers' Liability Act of April 22, 1908, 35 Stat. 65, 
 c. 149, as amended April 5, 1910, 36 Stat. 291, c. 143, 
 regulating the liability of common carriers by railroad to 
 their employes is constitutional. 
 
 Congress may, in the execution of its power over interstate 
 commerce, regulate the relations of common carriers by 
 railroad and their employes while both are engaged in 
 such commerce. 
 
 Congress has not exceeded its power in that regard by 
 
 1 Reprinted from the official report, 223 U. S. 1. 
 50
 
 786 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 prescribing the regulations embodied in the Employers' 
 
 Liability Act. 
 Those regulations have superseded the laws of the several 
 
 States in so far as the latter cover the same field. 
 Rights arising under the regulations prescribed by the act 
 
 may be enforced, as of right, in the courts of the States, 
 
 when their jurisdiction, as fixed by local laws, is adequate 
 
 to the occasion. 
 
 Congress, in the exertion of its power over interstate com- 
 merce, and subject to the limitations prescribed in the 
 Constitution, may regulate those relations of common car- 
 riers by railroad and their employes which have a sub- 
 stantial connection with interstate commerce and while 
 both carriers and employe" are engaged therein. 
 
 A person has no property no vested interest in any rule 
 of the common law. While rights of property created by 
 the common law cannot be taken without due process, the 
 law as a rule of conduct may, subject to constitutional 
 limitations, be changed at will by the legislature. 
 
 Under the power to regulate relations of employers and em- 
 ploye's while engaged in interstate commerce, Congress 
 may establish new rules of law in place of common-law 
 rules including those in regard to fellow servants, as- 
 sumption of risk, contributory negligence, and right of 
 action by personal representatives for death caused by 
 wrongful neglect of another. 
 
 In regulating the relations of employers and employe's en- 
 gaged in interstate commerce, Congress may regulate the 
 liability of employers and employe's for injuries caused by 
 other employe's even though the latter be engaged in 
 intrastate commerce. 
 
 The power of Congress to insure the efficiency of regulations 
 ordained by it is equal to the power to impose the regula- 
 tions; and prohibiting the making of agreements by those
 
 CONSTITUTIONAL DECISIONS 787 
 
 United States Supreme Court 
 
 engaged in interstate commerce which in any way limit a 
 liability imposed by Congress on interstate carriers does 
 not deprive any person of property without due process of 
 law, or abridge liberty of contract in violation of the Fifth 
 Amendment. 
 
 Queer e: Whether an element of the due process provisions of 
 the Fifth Amendment is the equivalent of the equal pro- 
 tection provision of the Fourteenth Amendment. 
 
 A classification of railroad employe's, even if including all 
 employes, whether subjected to peculiar hazards incident 
 to operation of trains or not, is not so arbitrary or un- 
 equal as to amount to denial of equal protection of the 
 laws. Such a classification does not violate the due process 
 clause of the Fifth Amendment even if equal protection is 
 an element of due process. 
 
 State legislation, even if in pursuance of a reserved power, 
 must give way to an act of Congress over a subject within 
 the exclusive control of Congress. 
 
 Until Congress acted on the subject, the laws of the several 
 States determined the liability of interstate carriers for 
 injuries to their employe's while engaged in such com- 
 merce; but Congress having acted, its action supersedes 
 that of the States, so far as it covers the same subject. 
 That which is not supreme must yield to that which is. 
 
 The inaction of Congress on a subject within its power does 
 not affect that power. 
 
 Rights arising under an act of Congress may be enforced, as 
 of right, in the courts of the States when their jurisdiction, 
 as prescribed by local law, is adequate to the occasion. 
 
 When Congress, in the exertion of a power confided to it by 
 the Constitution, adopts an act, it speaks for all the people 
 and all the States, and thereby establishes a policy for all, 
 and the courts of a State cannot refuse to enforce the act 
 on ground that it is not in harmony with the policy of that 
 State. Claflin v. H&useman, 93 U. S. 130.
 
 788 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 A state court cannot refuse to enforce the remedy given by 
 an act of Congress in regard to a subject within the domain 
 of Congress on the ground of inconvenience or confusion. 
 
 The systems of jurisprudence of the State and of the United 
 States together form one system which constitutes the 
 law of the land for the State. 
 
 The United States is not a foreign sovereignty as regards the 
 several States but is a concurrent and, within its juris- 
 diction, a paramount sovereign. Claflin v. Houseman, 93 
 U. S. 130. 
 
 Existence of jurisdiction in a court implies the duty to exer- 
 cise it notwithstanding such duty may be onerous. 
 
 82 Connecticut, 373, reversed, 173 Fed. Rep. 494, affirmed. 
 
 No. 120 (Mondou v. New York, New Haven & Hart- 
 ford Railroad Co.). 
 
 This was an action by a citizen of Connecticut against 
 a railroad corporation of that State to recover for per- 
 sonal injuries suffered by the plaintiff while in the de- 
 fendant's service. The injuries occurred in Connecti- 
 cut August 5, 1908, the action was commenced in one 
 of the Superior Courts of that State in October fol- 
 lowing, and the right of action was based solely on the 
 act of Congress of April 22, 1908 (35 Stat. 65, c. 149). 
 According to the complaint, the injuries occurred while 
 the defendant, as a common carrier by railroad, was 
 engaged in commerce between some of the States and 
 while the plaintiff, as a locomotive fireman, was em- 
 ployed by the defendant in such commerce, and the 
 injuries proximately resulted from negligence of the 
 plaintiff's fellow servants, who also were employed by 
 the defendant in such commerce. A demurrer to the 
 complaint was interposed upon the grounds, first, that 
 the act of Congress was repugnant in designated aspects
 
 CONSTITUTIONAL DECISIONS 789 
 
 United States Supreme Court 
 
 to the Constitution of the United States, and, second, 
 that even if the act were valid a right of action there- 
 under could not be enforced in the courts of the State. 
 The demurrer was sustained, judgment was rendered 
 against the plaintiff, the judgment subsequently was 
 affirmed by the Supreme Court of Errors of the State 
 (82 Connecticut, 373) upon the authority of Hoxie v. 
 N. Y., N. H. & H. R. Co., 82 Connecticut, 352, and 
 the plaintiff then sued out the present writ of error. 
 
 No. 170 (Northern Pacific Railway Co. v. Babcock). 
 
 This was an action by the personal representative 
 of a deceased employ^ of a railroad corporation to re- 
 cover, for the exclusive benefit of the surviving widow, 
 for the death of the employe, which resulted from an 
 injury suffered in the course of his employment. The 
 injury and death occurred in Montana, September 25, 
 1908, the action was commenced in the Circuit Court 
 of the United States for the District of Minnesota, Oc- 
 tober 4, 1909, and the right of action was based solely 
 on the act of Congress before mentioned. It appeared, 
 from the complaint, that the injury occurred while the 
 defendant, as a common carrier by railroad, was en- 
 gaged in commerce between some of the States, and 
 while the deceased, as a locomotive fireman, w r as em- 
 ployed by the defendant in such commerce; that the in- 
 jury proximately resulted from negligence of fellow serv- 
 ants of the deceased, who also were employed by the 
 defendant in such commerce ; that the deceased resided 
 in Montana and died without issue or a surviving father 
 or mother, but leaving a widow and also a sister, and 
 that if the statutes of Montana were applicable the re- 
 covery should be for the equal benefit of the widow and
 
 790 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 sister, and not for the exclusive benefit of the widow, as 
 prayed in the complaint and as provided in the act of 
 Congress. The defendant challenged the validity of the 
 act by a demurrer to the complaint, and in the subse- 
 quent proceedings insisted that the recovery, if any, 
 should be for the benefit of the widow and sister jointly 
 and not for the benefit of the widow alone, but the de- 
 murrer and the insistence were overruled and judgment 
 was rendered for the plaintiff for the exclusive benefit 
 of the widow, as prayed. By a direct writ of error the 
 defendant seeks a reversal of that judgment. 
 
 Nos. 289, 290 (Walsh v. New York, New Haven & Hart- 
 ford R. R. Co.; New York, New Haven & Hartford 
 R. R. Co. v. Walsh). 
 
 These writs of error relate to the judgment in a single 
 case. It was an action by the personal representative 
 of a deceased employe of a railroad corporation to re- 
 cover, for the benefit of the surviving widow and chil- 
 dren, for the death of the employe", which resulted from 
 an injury suffered in the course of his employment. 
 The injury and death occurred in Connecticut, Febru- 
 ary 11, 1909, the action was commenced in the Circuit 
 Court of the United States for the District of Mas- 
 sachusetts in July following and the right of action as- 
 serted in the second count of the declaration was based 
 on the act of Congress before mentioned. There were 
 several other counts, but they may be passed without 
 special notice. It was charged in the second count 
 that the injury occurred while the defendant, as a com- 
 mon carrier by railroad, was engaged in commerce be- 
 tween some of the States and while the deceased, in 
 the course of his employment by the defendant in such
 
 CONSTITUTIONAL DECISIONS 791 
 
 United States Supreme Court 
 
 commerce, was engaged in replacing a drawbar on one 
 of the defendant's cars then in use in such commerce, 
 and that the injury proximately resulted from negli- 
 gence of fellow servants of the deceased in pushing 
 other cars against the one on which he was working. A 
 demurrer to that count challenged the validity of the 
 act of Congress, but the demurrer was overruled. The 
 defendant answered, putting in issue all that was stated 
 in that count, and also alleging that the deceased, by 
 his own negligence, contributed to the injury which re- 
 sulted in his death and therefore that the damages 
 should be diminished in proportion to the amount of 
 negligence attributable to him. A trial to the court 
 and a jury resulted in a verdict and judgment for the 
 plaintiff upon the second count, and there was a judg- 
 ment for the defendant upon the other counts. Each 
 party has sued out a direct writ of error from this court. 
 The defendant calls in question the ruling upon its de- 
 murrer and other rulings in the progress of the cause, 
 notably such as related to the nature of the employment 
 in which the deceased and the fellow servants whose 
 conduct was in question were engaged at the time of 
 the injury and to the admeasurement of the damages. 
 The plaintiff makes no complaint of the judgment upon 
 the second count and, if it shall be affirmed, wishes to 
 waive her objections to the judgment upon the other 
 counts. 
 
 The act whose validity is drawn in question, 35 Stat. 
 65, c. 149, and the amendment of April 5, 1910, 36 Stat. 
 291, c. 143, are as follows: 
 
 "An Act Relating to the liability of common carriers 
 by railroad to their employe's in certain cases.
 
 792 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 " Be it enacted by the Senate and House of Representa- 
 tives of the United States of America in Congress assembled, 
 That every common carrier by railroad while engaging 
 in commerce between any of the several States or Ter- 
 ritories, or between any of the States and Territories, 
 or between the District of Columbia and any of the 
 States or Territories, or between the District of Colum- 
 bia or any of the States or Territories and any foreign 
 nation or nations, shall be liable in damages to any 
 person suffering injury while he is employed by such 
 carrier in such commerce, or, in case of the death of 
 such employe", to his or her personal representative, 
 for the benefit of the surviving widow or husband and 
 children of such employe"; and, if none, then of such 
 employe's parents; and, if none, then of the next of 
 kin dependent upon such employe, for such injury or 
 death resulting in whole or in part from the negligence 
 of any of the officers, agents, or employes of such carrier, 
 or by reason of any defect or insufficiency, due to its 
 negligence, in its cars, engines, appliances, machinery, 
 track, roadbed, works, boats, wharves, or other equip- 
 ment. 
 
 "SEC. 2. That every common carrier by railroad in 
 the Territories, the District of Columbia, the Panama 
 Canal Zone, or other possessions of the United States 
 shall be liable in damages to any person suffering in- 
 jury while he is employed by such carrier in any of 
 said jurisdictions, or, in case of the death of such em- 
 ploye", to his or her personal representative, for the 
 benefit of the surviving widow or husband and children 
 of such employe; and, if none, then of such employe" 's 
 parents; and, if none, then of the next of kin dependent 
 upon such employe, for such injury or death resulting
 
 CONSTITUTIONAL DECISIONS 793 
 
 United States Supreme Court 
 
 in whole or in part from the negligence of any of the 
 officers, agents, or employes of such carrier, or by rea- 
 son of any defect or insufficiency, due to its negligence, 
 in its cars, engines, appliances, machinery, track, road- 
 bed, works, boats, wharves, or other equipment. 
 
 "SEC. 3. That in all actions hereafter brought against 
 any such common carrier by railroad under or by virtue 
 of any of the provisions of this Act to recover damages 
 for personal injuries to an employe, or where such in- 
 juries have resulted in his death, the fact that the em- 
 ploye" may have been guilty of contributory negli- 
 gence shall not bar a recovery, but the damages shall 
 be diminished by the jury in proportion to the amount 
 of negligence attributable to such employe; Provided, 
 That no such employ^ who may be injured or killed 
 shall be held to have been guilty of contributory negli- 
 gence in any case where the violation by such com- 
 mon carrier of any statute enacted for the safety of 
 employes contributed to the injury or death of such 
 employe. 
 
 "SEC. 4. That in any action brought against any 
 common carrier under or by virtue of any of the pro- 
 visions of this Act to recover damages for injuries to, 
 or the death of, any of its employe's, such employe" shall 
 not be held to have assumed the risks of his employ- 
 ment in any case where the violation by such common 
 carrier of any statute enacted for the safety of employe's 
 contributed to the injury or death of such employe". 
 
 "SEC. 5. That any contract, rule, regulation, or de- 
 vice whatsoever, the purpose or intent of which shall 
 be to enable any common carrier to exempt itself from 
 any liability created by this Act, shall to that extent 
 be void: Provided, That in any action brought against
 
 794 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 any such common carrier under or by virtue of any of 
 the provisions of this Act, such common carrier may 
 set off therein any sum it has contributed or paid to 
 any insurance, relief benefit, or indemnity that may 
 have been paid to the injured employe" or the person 
 entitled thereto on account of the injury or death for 
 which said action was brought. 
 
 "SEC. 6. That no action shall be maintained under 
 this Act unless commenced within two years from the 
 day the cause of action accrued. 
 
 "SEC. 7. That the term 'common carrier' as used in 
 this Act shall include the receiver or receivers or other 
 persons or corporations charged with the duty of the 
 management and operation of the business of a common 
 carrier. 
 
 "SEC. 8. That nothing in this Act shall be held to 
 limit the duty or liability of common carriers or to im- 
 pair the rights of their employes under any other Act 
 or Acts of Congress, or to affect the prosecution of 
 any pending proceeding or right of action under the 
 Act of Congress entitled 'An Act relating to liability of 
 common carriers in the District of Columbia and Ter- 
 ritories, and to common carriers engaged in commerce 
 between the States and between the States and foreign 
 nations to their employes' approved June eleventh, 
 nineteen hundred and six. 
 
 "Approved April 22, 1908." 
 
 "An Act to Amend an Act entitled 'An Act relating 
 to the liability of common carriers by railroad to their 
 employe's in certain cases,' approved April twenty- 
 second, nineteen hundred and eight. 
 
 "Be it enacted by the Senate and House of Repre- 
 sentatives of the United States of America in Congress
 
 CONSTITUTIONAL DECISIONS 795 
 
 United States Supreme Court 
 
 assembled, That an Act entitled 'An Act relating to 
 the liability of common carriers by railroad to their em- 
 ployes in certain cases/ approved April twenty-second, 
 nineteen hundred and eight, be amended in section six 
 so that said section shall read : 
 
 "SEC. 6. That no action shall be maintained under 
 this Act unless commenced within two years from the 
 day the cause of action accrued. 
 
 "Under this Act an action may be brought in a cir- 
 cuit court of the United States, in the district of the 
 residence of the defendant, or in which the cause of 
 action arose, or in which the defendant shall be doing 
 business at the time of commencing such action. The 
 jurisdiction of the courts of the United States under 
 this Act shall be concurrent with that of the courts of 
 the several States, and no case arising under this Act 
 and brought in any state court of competent juris- 
 diction shall be removed to any court of the United 
 States. 
 
 "SEC. 2. That said Act be further amended by add- 
 ing the following section as section nine of said Act : 
 
 "SEC. 9. That any right of action given by this Act 
 to a person suffering injury shall survive to his or her 
 personal representative, for the benefit of the surviving 
 widow or husband and children of such employ^, and 
 if none, then of such employe's parents; and, if none, 
 then of the next of kin dependent upon such employe, 
 but in such cases there shall be only one recovery for 
 the same injury. 
 
 "Approved, April 5, 1910." 
 
 Mr. Donald G. Perkins for plaintiff in error in No. 120 : 
 The act of 1906 was held unconstitutional by this
 
 796 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 court because it could not by construction write into 
 the act words to make it read, "Any employ^ when 
 engaged in interstate commerce," which express words 
 of limitation if contained in the act, it was conceded, 
 would have rendered it constitutional. Congress in 
 passing the act of 1908 adopted this suggestion and 
 used express words of limitation to meet the views of 
 the court. 
 
 So far as the substantive right goes the act of 1908 
 does not differ from the act of 1906 and was within the 
 power of Congress under the decision of this court, and 
 it is unnecessary to cite the cases and repeat the argu- 
 ment there considered. Thornton Employers' Liability 
 Acts, 7, 10 et seq.; Employers 7 Liability Cases, 207 
 U. S. 463; and see Adair v. United States, 208 U. S. 178. 
 
 The power to create the liability necessarily includes 
 the power to change any and all rules in existence in re- 
 lation to the liability of master to servant at common 
 law or under state statutes. 
 
 Even the rules of the common law limited the power 
 of the carrier to free itself entirely by contract from 
 liability for its negligence in the carriage of passengers 
 and freight, and the legislative power of Congress, 
 assuming the matter is within its sphere, includes the 
 right to change these rules of the common law and create 
 a new and different rule. Railroad Co. v. Lockwood, 17 
 Wall. 357; Railroad Co. v. Stevens, 95 U. S. 655; Liver- 
 pool S. S. Co. v. Phoenix Ins. Co., 129 U. S. 397; Em- 
 ployers' Liability Cases, 207 U. S. 492; United States v. 
 D. H. R. R. Co., 213 U. S. 405. 
 
 There is no violation of constitutional privilege, 
 because the act applies to railroad interstate carriers 
 alone. Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205.
 
 CONSTITUTIONAL DECISIONS 797 
 
 United States Supreme Court 
 
 The act of Congress did not create an original juris- 
 diction in the Superior Court but it did create a substan- 
 tial right which accrued to a citizen of Connecticut, and 
 the Superior Court as a court of general jurisdiction had 
 jurisdiction to adjudicate the right. Ex parte McNeil, 
 13 Wall. 423; Cook v. Whippk, 55 N. Y. 164; Claflin v. 
 Houseman, 13 Wall. 137. 
 
 Congress intended that the state courts should exer- 
 cise a concurrent jurisdiction, and that the jurisdiction 
 of the Circuit Court shall be concurrent with that of the 
 state courts in actions under this act, which was merely 
 declaratory of the law as it existed. See amendment of 
 1910, Public No. 117, H. R. 17,263. 
 
 It was evidently the intent of Congress that the state 
 court should have a concurrent jurisdiction, for unless 
 this is so a party having a claim of less than $2,000 
 would be without a remedy, for the Circuit Court of the 
 United States has no jurisdiction where the damages 
 claimed are less than $2,000. See act, March 3, 1875, c. 
 137, 1, 18 Stat. 470; 969, U. S. Stat.; act of 1887-8; 
 24 Stat. 552 and 25 Stat. 443. 
 
 The power to regulate interstate commerce is one of 
 the powers which the State surrendered to the United 
 States, and assuming that the act in question is constitu- 
 tional and within the power of Congress to regulate in- 
 terstate commerce, then the power of Congress is su- 
 preme and paramount to that of the State and supersedes 
 the law and policy of the State of Connecticut on the 
 same subject, so that the State has no law and no policy 
 on this subject except the act of Congress. Sinnott v. 
 Davenport el al, 22 How. 242; Gulf &c. R. R. Co. v. 
 Helftey, 158 U. S. 98, 103; All &c. Tel Co. v. Phila- 
 delphia, 190 U. S. 160, 162; Miss. R. R. Comrs. v. Itt.
 
 798 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Central R. R., 203 U. S. 335; El Paso &c. Ry. Co. v. 
 Gutierrez, 215 U. S. 87. 
 
 The oath of office of the judges of the Connecticut 
 Supreme Court requires them to support the Constitu- 
 tion of the United States. 
 
 Even in enforcing transitory actions either in contract 
 or tort arising under the laws of a foreign State, which 
 is done as an act of comity between foreign States, the 
 fact that the foreign law is different is not sufficient to 
 prevent jurisdiction. Walsh v. N. Y. & N. E. R. R. Co., 
 160 Massachusetts, 571 ; Nor. Pac. Ry. Co. v. Babcock, 
 154 U. S. 197; Dennick v. R. R. Co., 103 U. S. 18. 
 
 Even if the plaintiff's right of action were to be 
 treated as arising under the laws of a foreign State, the 
 Connecticut court could not deny him a remedy from 
 mere whim or because the judges did not like the law, 
 but it could only be done on established principles of law 
 governing all cases, that to grant him his remedy would 
 be against the public policy or interests of the State, 
 not simply against the interest of the defendant, and 
 the following cases show that the conclusion of the court 
 that it could not entertain jurisdiction was unsound 
 and not in accord with established principles. Dennick 
 v. Railroad Co., 103 U. S. 18; Missouri Pacific Ry. Co. v. 
 Mackey, 127 U. S. 205; Huntington v. Attrill, 146 U. S. 
 657; Northern Pacific R. R. Co. v. Babcock, 154 U. S. 
 190; Ward v. Jenkins, 10 Mete. 588; Higgins v. Railroad 
 Co., 155 Massachusetts, 176; Walsh v. Railroad Co., 
 160 Massachusetts, 571; King v. Sarria, 69 N. Y. 31; 
 Leonard v. Columbia & Co., 84 N. Y. 48; Stoeckman v. 
 T. H. & R. R. Co., 15 Mo. App. 503; C. & 0. R. R. Co. v. 
 Am. Ex. Bank, 92 Virginia, 154. 
 
 But the plaintiff's case is much stronger than if he
 
 CONSTITUTIONAL DECISIONS 799 
 
 United States Supreme Court 
 
 were suing under a foreign law because the whole foun- 
 dation of the comity rule as to transitory actions is the 
 principle that the law of a State has no extraterritorial 
 force and therefore can be enforced not of right but only 
 as an act of comity, while this plaintiff is a citizen of 
 Connecticut and sues in the courts of his own State on a 
 cause of action arising in the State under the act of 
 Congress, which is the supreme law of Connecticut, and 
 governs the public policy of the State on that point. 
 Blythe v. Hinckley, 173 U. S. 508: Claflin v. Houseman, 
 93 U. S. 136. 
 
 This is a right under United States law just as much as 
 is a discharge in bankruptcy granted by a court of the 
 United States under the United States bankrupt law and 
 such a discharge is valid in the courts of all the States, 
 Hanover Nat. Bank v. Moyses, 186 U. S. 181, and the 
 denial of the right presents a Federal question. Strader 
 v. Baldwin, 9 How. 261 ; El Paso &c. Ry. Co. v. Gutierrez, 
 215 U. S. 87. St. Louis &c. R. R. Co. v. Taylor, 210 
 U. S. 285, distinguished. 
 
 The Connecticut Supreme Court had no power to 
 legislate or establish the public policy of the State but 
 its duty was to declare the law and it was bound by the 
 Constitution and laws of the United States. That the 
 plaintiff was entitled to maintain his action in the state 
 court is established by Ex parte McNeil, 13 Wall. 243; 
 Teal v. Felton, 12 How. 292; Claflin v. Houseman, 93 
 U. S. 136; Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 
 144; Defiance Water Co. v. Defiance, 191 U. S. 184; 
 Raisler v. Oliver, 97 Alabama, 710; Ordway v. Central 
 Nat. Bank, 47 Maryland, 245; Schuyler Nat. Bank v. 
 Bollong, 24 N. W. 827; Singer v. Bedstead Co., 65 N. J. 
 Eq. 293; Cook v. Whippk et al, 55 N. Y. 164; People v.
 
 800 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Welch, 141 N. Y. 273; Bletz v. Columbia Nat. Bank, 87 
 Pa. St. 87; Hartley v. United States, 3 Hayw. (Term.) 
 45; Kansas City &c. v. Flippo, 138 Alabama, 487; 
 Mobile &c. Ry. v. Bramberg, 141 Alabama, 258; Wilson 
 v. Southern Ry. Co., 172 Fed. Rep. 478. 
 
 Mr. Edward D. Robbins, with whom Mr. Joseph F. 
 Berry was on the brief, for defendant in error in No. 120 : 
 
 The power to regulate commerce among the several 
 States is exclusive wherever the matter is national in 
 its character or admits of one system or plan of regula- 
 tion. Cooley v. Board of Wardens, 12 How. 319; Welton 
 v. Missouri, 91 U. S. 280; Kendall v. United States, 12 
 Pet. 524, 618; Valarnio v. Thompson, 7 N. Y. 579. 
 
 There can be no question in this case that the act it- 
 self is national in its character and admits of only one 
 system, which, to be effective, must be uniform in its ap- 
 plication. 
 
 Where jurisdiction may be conferred on the United 
 States courts, it may be made exclusive where not so 
 by the Constitution itself, but, if exclusive jurisdiction 
 be neither expressed nor implied, the state courts have 
 concurrent jurisdiction whenever by their own constitu- 
 tion they are competent to take it. Claflin v. Houseman, 
 93 U. S. 130. See also Hoxie v. N. Y., N. H. & H. R. R. 
 Co., 82 Connecticut, 356; Chicago &c. R. Co. v. Whitton, 
 13 Wall. 288; Plaquemines Fruit Co. v. Henderson, 170 
 U. S. 521; Teal v. Felton, 12 How. 292; Dallemagne v. 
 Moisan, 197 U. S. 174; Robertson v. Baldwin, 165 U. S. 
 278. 
 
 Congress cannot confer jurisdiction upon the state 
 courts, Martin v. Hunter, 10 Wheat. 334; Houston v. 
 Moore, 5 Wheat. 27; and state courts will not or cannot
 
 CONSTITUTIONAL DECISIONS 801 
 
 United States Supreme Court 
 
 have jurisdiction of cases involving a penalty under 
 United States laws. Dudley v. Mayhew, 3 N. Y. 9, 15; 
 Davidson v. Champion, 7 Connecticut, 224; State v. 
 Curtiss, 35 Connecticut, 374; United States v. Lathrop, 
 17 Johnson (N. Y.), 4, 8; Ex parte Knowks, 5 California, 
 301; Kent's Commentaries, * 399; Rushworth v. Judges, 
 58 N. J. L. 97. 
 
 As Congress cannot vest any of the judicial power of 
 the United States in the state courts, it is bound to 
 create inferior courts in which to vest jurisdiction in 
 cases arising under its acts. These courts have been 
 created and cases arising under the act should be tried 
 in courts ordained and established by the Congress, 
 which are adapted better to enforce the act in a uniform 
 manner than courts established by the State. 
 
 While conceding that Congress may have intended 
 the state courts to assume jurisdiction, Congress cannot 
 compel the state court to entertain it against its wish. 
 
 The reservation of the States respectively by the 
 Tenth Amendment means the reservation of the right 
 of sovereignty which they respectively possessed before 
 the adoption of the Constitution and which they had 
 not parted from by that instrument ; and any legislation 
 by Congress beyond the limits of the power delegated 
 would be trespassing upon the rights of the States or the 
 people and w r ould not be the supreme law of the land 
 but null and void. United States v. Williams, 194 U. S. 
 295; Ex parte Merry man, 17 Fed. Cases, 9,487; Collector 
 v. Day, 11 Wall. 124; Colder v. Bull, 3 Dallas (U. S.), 
 388. 
 
 Art. V, 1, of the Connecticut constitution prescribes 
 how the judicial power of the State shall be vested and 
 exercised, and it cannot be within the power of Congress 
 51
 
 802 
 
 United States Supreme Court 
 
 to prescribe that a court of Connecticut must assume 
 jurisdiction of a cause of action based upon an act the 
 terms of which are entirely incompatible with its system 
 of jurisprudence. Kent's Commentaries, 12th ed.* 403. 
 
 The power of the state courts to determine what 
 cases they will accept jurisdiction of is absolute, for the 
 power to maintain a judicial department is one incident 
 to the inherent sovereignty of each State, in respect to 
 which the State is as independent of the General Govern- 
 ment as that Government is independent of the States. 
 As to that power the two governments are on an equality. 
 Collector v. Day, 11 Wall. 113, 126; Stearns v. United 
 States, 2 Paine, 300; Sherman v. Bingham, Fed. Cases, 
 No. 12,762; Beavin's Petition, 33 N. H. 89; Stephens, 
 Petitioner, 4 Gray, 559; In re Woodbury, 98 Fed. Rep. 
 833. 
 
 The exercise of jurisdiction in this case in the state 
 courts is entirely incompatible with the laws of the 
 State and the act has been deemed to be both impolitic 
 and unjust. 
 
 There are vital reasons why the state courts are not 
 obliged to assume jurisdiction of this action and one of 
 the principal reasons is that the act, to be enforced in 
 the state courts, can be enforced only at the expense of 
 disregarding many of the requirements of the law in 
 Connecticut both in respect to pleadings and in respect 
 to evidence. 
 
 Congress cannot provide rules of evidence which the 
 state courts are bound to follow. People v. Gates, 43 
 N. Y. 40; Caldwell v. N. J. Steamboat Co., 47 N. Y. 282; 
 Moore v. Moore, 47 N. Y. 467 ; Bowlin v. Commonwealth, 
 2 Bush (Ky.), 5; s. c., 92 Am. Dec. 468; Carpenter v. 
 Snelling, 97 Massachusetts, 452.
 
 803 
 
 United States Supreme Court 
 
 Mr. J. C. McReynolds, special assistant to the At- 
 torney General, by leave of the court, filed a brief for 
 the United States as amicus curice in No. 120. 
 
 The principles of law necessary for solving the ques- 
 tions in issue have been definitely determined by this 
 court. 
 
 Congress has power to legislate concerning the mutual 
 rights and liabilities of master and servant when both 
 are actually engaged in interstate commerce. Howard 
 v. Illinois Central R. R. Co., 207 U. S. 463; Adair v. 
 United States, 208 U. S. 161. 
 
 The Employers' Liability Act of 1906 was, in El Paso 
 & N. E. Ry. Co. v. Gutierrez, 215 U. S. 87, 96, declared 
 valid so far as it relates to commerce within the Terri- 
 tories where the inhibitions of the Fifth Amendment 
 apply with full force. Rassmussen v. United States, 197 
 U. S. 516. Objections predicated upon the Fifth Amend- 
 ment, which are now urged against the act of 1908, 
 apply with equal force to the earlier act, and therefore 
 must be considered as overruled. 
 
 In Atlantic Coast Line R. R. Co. v. Riverside Mills, 
 219 U. S. 186, this court upheld the Carmack amend- 
 ment as a proper regulation of interstate commerce and 
 not in violation of the Fifth Amendment; and see Mo- 
 bile &c. Railroad Co. v. Turnipseed, 219 U. S. 35; L. & 
 N. Railroad v. Melton, 218 U. S. 36; Griffith v. Connec- 
 ticut, 218 U. S. 572; German Alliance Ins. Co. v. Hale, 
 219 U. S. 307, as to general classification of railway 
 employes being a proper exercise of the police power. 
 
 The relationship the reciprocal rights and liabilities 
 between a railroad carrier and its employes arises out 
 of agreement; and when both parties are actually en- 
 gaged in interstate commerce this agreement is an
 
 804 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 essential part thereof over which Congress has plenary 
 power of regulation subject only to the restrictions of 
 the Constitution. Beven on Employers' Liability, 3; 
 Rueggs on Employers' Liability, 7th ed.; Mechem on 
 Agency, 1 ; Cooley on Torts, 531 ; Farwell v. Boston 
 & Worcester R. R. Co., 4 Met. 49, 56; Priestley v. Fowler, 
 3 Mees. & W. 1; Murray v. So. Car. R. R. Co., 1 Mc- 
 Mullan, 385; Thomas v. Quartermaine, 18 Q. B. D. 
 685; Chicago &c. Ry. Co. v. Ross, 112 U. S. 377, 382; 
 Nor. Pac. R. R. Co. v. Herbert, 116 U. S. 642, 647; Nor. 
 Pac. R. R. Co. v. Hambly, 154 U. S. 349; Article by 
 Prof. Mechem in The Illinois Law Review, Novem- 
 ber, 1909. 
 
 What constitutes interstate commerce and what is a 
 regulation of it are practical questions to be decided in 
 view of the rights involved in each case. Dozier v. Ala- 
 bama, 218 U. S. 124. The operation of a railroad carrier 
 in interstate commerce is impossible without servants 
 the human instrumentalities who must perform the 
 necessary acts. The lack of power to control agreements 
 with such servants by prescribing their terms or other- 
 wise would result in inability completely and effectually 
 to regulate the course and current of commerce as ordi- 
 narily conducted through the instrumentality of rail- 
 roads. Congress has plenary power to regulate whatever 
 is interstate commerce, subject only to the restrictions of 
 the Constitution. United States v. Delaware & Hudson 
 Co., 213 U. S. 366. 
 
 In the absence of action by Congress, the States may 
 legislate concerning the relationship the rights and 
 liabilities between master and servant operating in 
 interstate commerce. But the general subject is within 
 the control of Congress whenever it may choose to exer-
 
 CONSTITUTIONAL DECISIONS 805 
 
 United States Supreme Court 
 
 else its power. Martin v. Pittsburg &c. R. R., 203 U. S. 
 284, 294; Sherlock v. Ailing, 93 U. S. 99, 103, 107; Old 
 Dominion S. S. Co. v. Gilmore, 207 U. S. 398; West. 
 Un. Tel. Co. v. Commercial Milling Co., 218 U. S. 
 406. 
 
 State statutes have been upheld only where Congress 
 left the matter untouched and open to state regulation. 
 When the public good requires such legislation it must 
 come from Congress and not from the States. Hall v. 
 De Cuir, 95 U. S. 485; Chiles v. Chesapeake & Ohio Ry. 
 Co., 218 U. S. 71; Louisville, N. 0. & T. Ry. Co. v. Mis- 
 sissippi, 133 U. S. 587; Pta/ v. Ferguson, 163 U. S. 537, 
 540; N. J. S. Co. v. Brockett, 121 U. S. 637; Hutchinson 
 on Carriers (3d ed.), 997, 1077. 
 
 A contract for the transportation of goods between 
 different States by vessel or railroad is a part of inter- 
 state commerce whose terms may be prescribed or 
 regulated by act of Congress; The Delaware, 161 U. S. 
 459, 471 ; and as to the Harter Act, passed in 1893, see 
 Martin v. The Southwark, 191 U. S. 1 ; Patton v. T. & P. 
 Ry. Co., 179 U. S. 658, 663. 
 
 As to the Carmack amendment, see Atlantic Coast 
 Line R. R. v. Riverside Mills, 219 U. S. 186. 
 
 The contract for service between a sailor and a vessel 
 engaged in foreign commerce is part thereof and its 
 terms may be directly prescribed by Congress. Patter- 
 son v. The Eudora, 190 U. S. 169, 176; Robertson v. 
 Baldwin, 165 U. S. 275. 
 
 Congress may prescribe the character of instruments 
 to be used in interstate commerce and declare the result 
 of a failure so to do upon the agreement of employment 
 between master and servant. Johnson v. 80. Pacific Co., 
 196 U. S. 1; Schlemmer v. Buffalo, R. & P. Ry. Co., 205
 
 806 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 U. S. 1; St. Louis &c. Ry. Co. v. Taylor, 210 U. S. 281, 
 294, 295. 
 
 Mr. Charles W. Bunn for plaintiff in error in No. 170: 
 
 Probably the interests of the railway company, plain- 
 tiff in error, would be promoted by having the act of 
 Congress sustained, thus securing to it at least one uni- 
 form law of liability throughout the States in lieu of the 
 differing laws of many States. But the fact cannot be 
 ignored that for over a century it has been supposed 
 that laws such as this fell within the exclusive power 
 of the States, and that this view is held still by a large 
 proportion of the bar and people. In fact, while defend- 
 ant in error as administratrix is maintaining this action 
 under this law, a sister of deceased, not a party to this 
 action, asserts the liability of the railway company to 
 her under the Montana statute. 
 
 The act of Congress rests wholly upon the power of 
 Congress to regulate commerce among the States, which 
 is the power to prescribe the rules by which commerce 
 is to be governed. Adair v. United States, 208 U. S. 161, 
 177. See article by Mr. Hackett in Harvard Law Re- 
 view for November, 1908. From the adoption of the 
 Constitution until recently it has been understood uni- 
 versally that the exclusive power is in the States to say 
 for what negligence a master shall be liable to a servant, 
 what shall be the effect of the servant's contributory 
 negligence, what shall be the master's liability for the 
 acts of fellow servants, whether any pecuniary liability 
 shall arise out of death caused by negligence, what shall 
 be the measure of damage in death and other negligence 
 cases, and who shall receive the fruits of recovery. 
 
 While the power of Congress is supreme in its sphere,
 
 CONSTITUTIONAL DECISIONS 807 
 
 United States Supreme Court 
 
 it does not extend beyond those subjects which pertain 
 immediately and directly to commerce. The utmost in- 
 genuity has failed to prove how commerce will directly 
 be promoted or affected, or the movement of goods or 
 passengers by rail directly influenced, by any rule gov- 
 erning the master's liability to his servant for defects in 
 appliances, or for the acts of fellow servants, or establish 
 the effect of the servant's own negligence, or determining 
 when a liability arises for negligent death, or the extent 
 of the damages, or the persons to whom the damages 
 shall go. 
 
 The act is plainly distinguishable from safety appli- 
 ance laws and from laws prescribing tests for qualifica- 
 tion of trainmen. Such laws have an obvious and direct 
 relation to commerce. They make transportation both 
 of passengers and freight safer and more reliable. 
 
 Congress may have authority to regulate in some re- 
 spects the relation of master and servant, but it has no 
 such authority except to make rules really and substan- 
 tially affecting commerce, and the rules laid down in the 
 act in question do not so affect commerce. 
 
 Regulation of liability for injury to an employe" 
 merely because the master is engaged in interstate 
 commerce, or because the employe is so engaged, is in- 
 admissible, the particular regulation not being a rule of 
 commerce or having any relation to commerce; or at 
 most such a shadowy and indirect relation as not to be a 
 regulation of commerce within the power of Congress. 
 County of Mobile v. Kimball, 102 U. S. 691; Gloucester 
 Ferry Co. v. Pennsylvania, 114 U. S. 196; In re Rahrer, 
 140 U. S. 545; Robbins v. Shelby Taxing District, 120 
 U. S. 489; United States v. Knight Co., 156 U. S. 1; 
 Hooper v. California, 155 U. S. 648.
 
 United States Supreme Court 
 
 The act of Congress probably conflicts with the law of 
 every State, with some in one particular, with others in 
 another. It would be impossible to enumerate such con- 
 flicts; but some of them are : in respect of the liability for 
 the acts of fellow servants; in creating an action for death 
 practically with unlimited damages; in distribution of 
 proceeds in cases of recovery for death ; in respect of the 
 effect of contributory negligence and assumption of risk; 
 in providing that no contract may be made between the 
 parties contrary to the terms of the act; and in giving 
 two years to bring action and in not requiring, as the 
 laws of some States do, any preliminary notice to the 
 defendant. 
 
 Congress has assumed to enter the field of the admin- 
 istration of deceased persons. In some States damages 
 for death are not subject to the claims of creditors; in 
 others it is believed that they are; but if this act is valid 
 it seems to remove that question from state control. 
 Some States give the damages to the heirs, some to the 
 next of kin, and some to the widow. The rules in the 
 States vary widely in determining who is an heir or next 
 of kin entitled to share in the recovery. 
 
 In this particular case the law of Montana would give 
 the damages half to the widow and half to the sister; but 
 the act of Congress assumes to overrule these state 
 statutes in the case at bar giving the whole damage to 
 the widow to the exclusion of the sister, instead of divid- 
 ing it between them. 
 
 Conflicts between the act of Congress and laws of the 
 States result in annulling the acts of the States, providing 
 that of Congress is valid, because if this is a regulation 
 of commerce it is so well settled as now to be elementary, 
 that Congress once having acted, state power over the
 
 CONSTITUTIONAL DECISIONS 809 
 
 United States Supreme Court 
 
 whole subject (if indeed the States ever had any power) 
 is ended ; and any legislation by a State creating a liability 
 of railway companies to their employes engaged in inter- 
 state commerce would be an unlawful interference with 
 and burden upon such commerce. On this clear prin- 
 ciple the plaintiff in error will not be liable to the sister 
 of deceased, or to an administrator appointed for her 
 benefit under the laws of Montana, provided this judg- 
 ment is affirmed. 
 
 Plaintiff in error agrees with the Attorney General 
 that railway companies have no employe's who are not 
 engaged in interstate commerce, unless indeed they 
 carry on mining or some business apart from transpor- 
 tation. The whole line of a railroad extending through 
 several States constitutes a single property and of 
 necessity must be operated as such. 
 
 If the act in question is valid all employes of railways, 
 at least all employed in or about the transportation 
 carried on by railways, are taken out of the jurisdiction 
 by the States of which they are citizens, to the extent 
 of all the matters regulated by the act. The same will 
 follow, if Congress chooses to act as to employes of man- 
 ufacturers and merchants engaged in interstate com- 
 merce. 
 
 Mr. Samuel A. Anderson for defendant in error in 
 No. 170: 
 
 Congress has power, under the commerce clause, to 
 regulate the relation of master and servant as between 
 an interstate carrier and an interstate servant. Em- 
 ployers' Liability Cases, 207 U. S. 463; Adair v. United 
 States, 208 U. S. 161 ; Gibbons v. Ogden, 9 Wheat. 1, 196; 
 El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S.
 
 810 BRADBURY'S WORKMEN'S COMPENSATION 
 
 United States Supreme Court 
 
 87; Peirce v. Van Dusen, 78 Fed. Rep. 693; The Daniel 
 Ball, 10 Wall. 557; Oilman v. Philadelphia, 3 Wall. 713, 
 724, 725; United States v. Combs, 12 Pet. 72, 78; Cooley 
 v. Board of Wardens &c., 12 How. 299; Patterson v. 
 Bark Eudora, 190 U. S. 169. 
 
 Congress has the power to regulate the relation of 
 master and servant as between an interstate carrier 
 and an intrastate employe. See Missouri Pacific Ry.Co. 
 v. Mackey, 127 U. S. 205; Minn. & St. Louis Ry. Co. v. 
 Herrick, 127 U. S. 210; Chicago, Kansas & Western R. R. 
 Co. v. Pontius, 157 U. S. 209; Tullis v. Lake Erie 
 &c. R. R. Co., 175 U. S. 348; Baltimore & Ohio R. R. Co. 
 v. Baugh, 149 U. S. 368; Minnesota Iron Company v. 
 Kline, 199 U. S. 593. 
 
 The power of Congress to regulate commerce between 
 the States is as great as to regulate commerce with 
 foreign nations, the power in both instances originating 
 solely from the commerce clause. See Brown v. Houston, 
 114 U. S. 622; Bowman v. Chicago &c. Ry. Co., 125 U. S. 
 465; Crutcher v. Kentucky, 141 U. S. 47; Pittsburg & 
 Southern Coal Co. v. Bates, 156 U. S. 577. 
 
 The fact that the act declares that such common car- 
 riers shall be liable for injuries to interstate servants 
 caused through the negligence of any employe does not 
 tend to impair its validity. Watson v. St. Louis, I. M. 
 & S. Ry. Co., 169 Fed. Rep. 942, 950. 
 
 Under the decisions on the Safety Appliance Acts, if 
 any car in a train is being used in interstate commerce, 
 all cars in that train must be equipped according to the 
 provisions of the acts, whether such cars are being used 
 or were ever used in carrying interstate merchandise. 
 See Johnson v. Southern Pacific Ry. Co., 196 U. S. 1; 
 Schlemmer v. Buffalo &c. Ry. Co., 205 U. S. 1; Wabash
 
 CONSTITUTIONAL DECISIONS 811 
 
 United States Supreme Court 
 
 Railway Company v. United States, and Elgin J. & E. 
 Ry. Co. v. United States, 168 Fed. Rep. 1. 
 
 Congress has power to impose liability upon an inter- 
 state carrier by railroad in favor of an interstate servant 
 injured through the negligence of other employe's work- 
 ing at and about and in connection with such inter- 
 state railroad, irrespective of the employment of the 
 servant chargeable with careless acts resulting in such 
 injury. Oilman v. Philadelphia, 3 Wall. 713; In re 
 Debs, 158 U. S. 564. 
 
 The act in question is not invalid because confined to 
 common carriers by railroad engaged in interstate com- 
 merce, nor because it embraces all interstate employes 
 on interstate roads, when injured while engaged in such 
 service, without regard to the character of such service. 
 Patterson v. Bark Eudora, 190 U. S. 169; Kiley v. Chi- 
 cago, Milwaukee & St. Paul Ry. Co., 138 Wisconsin, 215. 
 
 Sections 3 and 4 of the act, the first establishing the 
 doctrine of comparative negligence, the second abro- 
 gating the doctrine of assumption or risk in certain cases 
 are valid enactments. Johnson v. Southern Pacific 
 Ry. Co., 196 U. S. 1; Schkmmer v. Buffalo &c. Ry. Co., 
 205 U. S. 1. 
 
 It was the aim of Congress to do exact justice. As to 
 wisdom of such a rule as applied to marine torts, see The 
 Max Morris, 137 U. S. 1 ; The Mystic, 44 Fed. Rep. 399. 
 Whether or not these provisions are equitable or unjust 
 is a matter concerning Congress and not the courts. 
 St. Louis & Iron Mountain Ry. Co. v. Taylor, 210 U. S. 
 281, 295. 
 
 Section 5, limiting the right of contract and providing 
 that no rule, etc., shall be permitted to exempt such 
 common carriers from any liability created by said act,
 
 812 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 is a valid enactment. Kiley v. Chicago, M. & St. P. Ry. 
 Co., 138 Wisconsin, 215. 
 
 Sections 3, 4 and 5 are clearly separable from the main 
 body of the statute and, even if one or all should be held 
 invalid, nevertheless, the main statute could and should 
 be sustained, notwithstanding such invalidity. 
 
 The statute is in keeping with modern thought and 
 is a wise and humane enactment. Many States have 
 legislated along similar lines and probably in no State 
 does the common law still exist in its full force and 
 effect. All men, including all persons engaged in the 
 business of transportation, now concede that the general 
 object sought by the enactment of the statute is one 
 that should meet with universal approval. 
 
 The Attorney General, by leave of the court, filed a 
 brief for the United States, as amicus curice, in No. 170: 1 
 
 So far as it relates to the liability of an interstate 
 employer to an interstate employe for injury received 
 through the negligence of another interstate employe, 
 the act is a regulation of interstate commerce, and 
 within the constitutional power of Congress. 
 
 In the Employers' Liability Cases, 207 U. S. 463, the 
 enactment there considered was held unconstitutional, 
 for the reason that it imposed a liability to an intrastate 
 employe as well as to an interstate employe ; while what 
 was then said in the opinion of the court concerning the 
 authority of Congress to regulate the liability to an in- 
 
 1 The brief contained the following statement: 
 
 The foregoing brief was prepared by the late Solicitor General 
 (Lloyd W. Bowers who died in September, 1910) with his accus- 
 tomed care and ability. In order that it may properly be before 
 the court, I adopt it and ask its consideration. Geo. W. Wicker- 
 sham, Attorney General. December, 1910.
 
 CONSTITUTIONAL DECISIONS 813 
 
 United States Supreme Court 
 
 terstate employe was not logically vital to the decision, 
 nevertheless the utterance was made after full discussion 
 of the very question at the bar, after solemn consider- 
 ation of the question by the court, and in a deliberate 
 purpose of preventing misconception by Congress of the 
 actual and limited scope of the exact decision, with the 
 result that Congress should not mistakenly believe it- 
 self incapable of enacting a new statute affecting in- 
 terstate employes alone. 
 
 Whether the court's declaration was, in a technical 
 view, dictum or decision, the declaration certainly was 
 not casual or unconsidered, but was solemnly made 
 after argument, upon consideration, and with serious, 
 just and beneficent purpose, and see dissenting opinions 
 of Justices HARLAN, McKENNA, HOLMES and MOODY. 
 
 In the later case of Adair v. United States, 208 U. S. 
 161, this court treated the power of Congress as settled. 
 
 Congress passed the act of 1908 in the purpose of exer- 
 cising a power which this court, in The Employers 1 Lia- 
 bility Cases and in the Adair Case, solemnly accorded 
 to Congress ; and the lower Federal courts have regarded 
 those cases as settling the matter. Watson v. St. Louis, 
 I. M. & S. Ry. Co., 169 Fed. Rep. 942; Zikos v. Oregon 
 R. R. & Nav. Co., 179 Fed. Rep. 893. 
 
 Whatever may be the power of Congress to legislate 
 about or for agents of interstate commerce, when such 
 legislation can have no substantial influence upon the 
 act which is interstate commerce, there can be no doubt 
 of the congressional authority to legislate concerning the 
 agents of interstate commerce in ways that do substan- 
 tially influence the act of interstate commerce about 
 which such agents are engaged, or affect the reliability, 
 security, promptness or economy of the Interstate Com-
 
 814 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 merce Act. Interstate commerce if not always at any 
 rate when the commerce is transportation is an act. 
 
 If Congress regards the rule of employer's responsi- 
 bility established by this new statute as more conducive 
 than the old rule to the security of the men performing 
 the act of interstate commerce, whether it is right in 
 its conclusion is unimportant, for, if that view can be 
 fairly entertained, it is not for the courts to substi- 
 tute their opinion concerning the better policy. Em- 
 ployers' Liability Cases, supra; St. Louis & I. M. Ry. 
 Co. v. Taylor, 210 U. S. 281. 
 
 Testing the rule therefore by the theory on which it 
 may and does rest, it is an enactment to promote not 
 only the actual, but also the prompter, cheaper, safer 
 and more efficient, performance of the act of interstate 
 commerce itself. Illustrations of the power of Congress 
 to regulate the act of interstate commerce by legislation 
 concerning the agents who do it or the instruments 
 with which it is done exist both in the Federal statutes 
 and in the decisions of this court. 
 
 Congress may create an agent for doing interstate 
 commerce, Pacific Railroad Removal Cases, 115 U. S. 1; 
 California v. Pacific Railroad, 127 U. S. 1 ; may authorize 
 the erection of bridges as instrumentalities of interstate 
 commerce, The Clinton Bridge, 10 Wall. 454; Luxton v. 
 North River Bridge Co., 153 U. S. 525; may prescribe the 
 character or qualifications of the agents of interstate 
 commerce so as to pilots. See Spraigue v. Thompson, 
 118U. S. 90, 95. 
 
 Such power as the States possess to license and to 
 require the use of pilots exists only because Congress 
 leaves them that power until action by itself. Cooley 
 v. Philadelphia Wardens, 12 How. 299; Huus v. N. Y. &
 
 CONSTITUTIONAL DECISIONS 815 
 
 United States Supreme Court t 
 
 Porto Rico S. S. Co., 182 U. S. 392; Olsen v. Smith, 195 
 U. S. 332, 344. 
 
 Congress may prescribe the kind and condition of the 
 material instruments with which commerce shall be 
 done. See Safety Appliance Acts, March 2, 1893, 27 
 Stat. 531; of April 1, 1896, 29 Stat. 85; March 2, 1903, 
 32 Stat. 943 ; and numerous acts concerning such things 
 as steam boilers, life preservers, lifeboats and fire ap- 
 paratus on vessels. 
 
 The validity of the Safety Appliance Acts seems 
 never to have been questioned either by the bar or by 
 this court. Johnson v. Southern Pacific Co., 196 U. S. 1; 
 Schlemmer v. B., R. & P. Ry. Co., 205 U. S. 1; St. Louis, 
 I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281. 
 
 The system of licensing steam vessels engaged in in- 
 terstate commerce was upheld in The Daniel Ball, 10 
 Wall. 557. 
 
 The supply and distribution of cars as instruments 
 of interstate commerce may be regulated under the 
 authority of Congress. Int. Com. Comm. v. III. Cent. 
 R. R. Co., 215 U. S. 452, 474. For other instances see 
 Hours of Service Act, March 4, 1907, 34 Stat. 1415; 
 Explosive Act of July 3, 1866, 14 Stat. 81 ; Rev. Stat., 
 5353-5355, Commodities Clause; United States v. 
 Del & Hudson Co., 213 U. S. 366. 
 
 Congress may legislate in reasonable ways to preserve 
 the existence and conserve the efficiency of interstate 
 employes against other persons who are in the same 
 interstate business. The Federal power is to protect 
 and advance the act of interstate commerce, and so to 
 protect and further the work of any particular agent 
 of interstate commerce, against all the world. In re 
 Debs, 158 U. S. 564. Even a State of the Union cannot
 
 816 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 sanction an interruption. Gibbons v. Ogden, 9 Wheat. 1 ; 
 Pennsylvania v. Wheeling Bridge Co., 13 How. 518; 
 Union Bridge Co. v. United States, 204 U. S. 364. 
 
 Congress would probably be within its power if it were 
 legislating solely for the benefit of the interstate employe 
 who is injured in interstate work, and without reference 
 to the effect of its legislation upon the security and effi- 
 ciency of the interstate act itself. 
 
 In Patterson v. Bark Eudora, 190 U. S. 169, the com- 
 merce clause was held to empower Congress to forbid 
 the advance payments of wages to seamen engaged in 
 interstate or foreign commerce. This rule was enacted 
 for the sole benefit of the seamen as the agents of com- 
 merce. The case did not rest upon the admiralty powers 
 of the United States. 
 
 Congress may so legislate as to preserve the utility or 
 the beneficence of commerce to those for whom it is done 
 or to the public at large, and may prevent the conduct 
 of pernicious commerce. Lottery Case, 188 U. S. 321; 
 United States v. Del & Hudson Co., 213 U. S. 366. 
 
 The statute is a regulation of interstate commerce 
 although it creates a liability of the interstate employer 
 to his interstate employe" for injury of the latter through 
 the negligence of an intrastate employe. Schlemmer v. 
 Buffalo, Rochester &c. Ry., 205 U. S. 1, 11. 
 
 Abolition of the fellow-servant rule is only an extinc- 
 tion in the particular case of the doctrine of assumed 
 risk. 
 
 The constitutional function of Congress is to save and 
 promote interstate commerce; and it may save and pro- 
 mote it through suppression of any kind of injurious in- 
 fluence. In re Debs, 158 U. S. 564; Loewe v. Lawlor, 208 
 U. S. 274.
 
 CONSTITUTIONAL DECISIONS 817 
 
 United States Supreme Court 
 
 Congress has forbidden local bridges which interfere 
 with interstate navigation; local carriage of explosives 
 on interstate trains; state or municipal interference with 
 the business of interstate soliciting agents, and state and 
 municipal taxation of interstate business. An act for 
 punishment of outsiders for stealing goods of a wrecked 
 vessel was upheld, under the commerce clause, in United 
 States v. Coombs, 12 Pet. 72, 77. 
 
 An interstate employer can be required to be careful 
 about the apparatus that he uses, for the protection of 
 his employe* who is engaged in interstate work, without 
 reference to the interstate or intrastate character of the 
 use to which the apparatus is being put at the particu- 
 lar time. 
 
 If constitutional difficulty be found about extending 
 the interstate employer's responsibility to an interstate 
 employe for negligence of an intrastate employe, the 
 statute then should be construed as limited to the case of 
 an interstate employe's negligence. 
 
 The proper construction of the statute, unless that 
 construction will destroy it, includes the case of an in- 
 trastate employe's negligence. 
 
 The congressional selection of a civil liability of the 
 interstate employer as the best sanction for his new duty 
 of preventing injury of an interstate employe through 
 negligence of his coemployes is clearly allowable; and, 
 as Congress had authority to adopt that sanction, it 
 necessarily prescribed to whom the new civil right 
 should belong. See TAFT, Cir. J., in Narramore v. 
 Cleveland, C., C. & St. L. Ry. Co., 96 Fed. Rep. 298, 300. 
 
 A new civil duty necessarily involves a new civil right. 
 It was allowable, because unavoidable, for Congress to 
 say who should have the right of civil recovery. Other- 
 52
 
 818 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 wise, even if it would be competent for the States to des- 
 ignate the possessor or beneficiary of the right, the state 
 legislatures might make no such designation. In any 
 event, the effectiveness of the congressional rule of duty 
 would be left to the choice of the States. 
 
 The statutory provisions that the injured man may 
 sue and that, if he dies, his personal representative may 
 sue for the benefit of designated relatives, are requisite 
 to the existence of any effective right, and therefore of 
 any effective duty. 
 
 The designation of the beneficiaries of the new right, 
 in case the injured employe" dies, does not interfere with 
 the ordinary control of the States over post mortem suc- 
 cession. State laws of descent have nothing to do with 
 the question who may continue settlement and finally 
 take title under the homestead law of the United States, 
 after death of the original entryman. Bernier v. Bernier, 
 147 U. S. 242; McCune v. Essig, 199 U. S. 382. 
 
 Congress can enact that the responsibility of an inter- 
 state employer to an interstate employe" for negligence 
 of coemployes or negligence about appliances shall not 
 be entirely displaced by contributing negligence of the 
 interstate employe". 
 
 Nobody has a vested right in the continuance of the 
 rules of the common law. Rights already created under 
 those rules and property already derived from them 
 have sanctity; but the common law may be changed as 
 to future transactions, just as statutes may be. Munn 
 v. Illinois, 94 U. S. 113, 134. 
 
 How the interstate employe's negligence shall be al- 
 lowed to affect the interstate employer's liability for 
 his own negligence or for negligence with which he is 
 chargeable is purely one of policy, within the legis-
 
 CONSTITUTIONAL DECISIONS 819 
 
 United States Supreme Court 
 
 tive discretion, and the common-law view may ra- 
 tionally be rejected. The alternative conclusion which 
 Congress has reached is to be found in the long estab- 
 lished rules of certain jurisdictions not holding to the 
 common law and in the recent trend of English and 
 American legislation. See, for instance, the admiralty 
 practice, which divides the loss between persons con- 
 currently negligent. The Sapphire, 18 Wall. 51, 56; 
 The Max Morris, 137 U. S. 1. And contribution lies 
 between joint tort feasors in admiralty. Erie R. R. 
 Co. v. Erie Transp. Co., 204 U. S. 220, 225, 227. 
 
 The rule of comparative negligence, variant in its 
 details but always contradictory of the common-law 
 rule, was established by the courts in Illinois, Kansas 
 and Tennessee. Galena v. Jacobs, 20 Illinois, 478, 496 ; 
 Chicago v. Stearns, 105 Illinois, 554; Union Pacific R. 
 R. Co. v. Rollins, 5 Kansas, 167, 180; Kansas &c. R. 
 R. Co. v. Peavey, 29 Kansas, 169, 180; Nashville &c.-R. 
 R. Co. v. Smith, 6 Heisk. 174; Nashville &c. R. R. Co. v. 
 Carroll, 6 Heisk. 347, 366. 
 
 For statutory instances, see Georgia Code, 2972; 
 Florida Laws of 1887, c. 3744, 1; Mississippi Code of 
 1892, 3548; English Employers' Liability Acts, Aug. 6, 
 1897; 60 and 61 Viet., c. 37, 1 ; Act of July 30, 1900, 63 
 and 64 Viet., c. 22; McNicholas v. Dawson, 68 L. J. 
 (Q. B.) 470. 
 
 It seems never to have been held anywhere that the 
 Federal or any state constitution requires that contrib- 
 utory negligence be either total or a partial defense. 
 
 As to statutes adopting the rule of comparative neg- 
 ligence and abolishing contributory negligence, see Nor. 
 Pac. Ry. Co. v. Castle, 172 Fed. Rep. 841, 843; Ala- 
 bama G. S. Ry. Co. v. Coggings, 88 Fed. Rep. 455; Chris-
 
 820 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 tian v. Macon Ry. & Light Co., 120 Georgia, 314; Rail- 
 road Co. v. Foxworth, 41 Florida, 1, 63; Phila., B. & W. 
 R. R. Co. v. Tucker, 35 App. D. C. 123; 38 Washington 
 Law Reporter, 230; Pulliam v. Illinois Central R. R. 
 Co., 75 Mississippi, 627; Schlemmer v. Buffalo &c. Ry. 
 Co., 205 U. S. 1. 
 
 Congress likewise can modify, as it did in 4, as to 
 interstate employes the assumption of risk rule in 
 cases where the common carrier has violated any statute 
 enacted for the safety of employes and so contributed 
 to the injury or death of such employe. 
 
 Recent statutory abrogation of the doctrine of as- 
 sumption of risk will be found in North Carolina Act 
 of February 23, 1897, Private Laws of 1897, c. 56; Mas- 
 sachusetts Laws of 1895, c. 362, 7 ; New York Act 
 of April 15, 1902, Laws of 1902, Vol. 2, c. 600, 3, 
 pp. 1748-50; English Employers' Liability Act of 1880, as 
 interpreted in Thomas v. Quartermaine, 18 Q. B. D. 685, 
 and Smith v. Baker, App. Cas. 1891, 325; English Em- 
 ployers' Liability Act of July 30, 1900, 63 and 64 Viet., 
 c. 22; Federal Safety Appliance Act of March 2, 1893, 
 as amended April 1, 1896, 8 (27 Stat. 531, and 29 
 Stat. 85). 
 
 For judicial authorities upholding general statutory 
 changes of that nature, see Coley v. Railroad Co., 128 
 Nor. Car. 534; s. c., 129 Nor. Car. 407; Missouri 
 Pacific Ry. Co. v. Mackey, 127 U. S. 205; Miss. & St. 
 Louis Ry. Co. v. Herrick, 127 U. S. 210; Chicago, K. & 
 Western R. R. Co. v. Pontius, 157 U. S. 209; Tullis v. 
 Lake Erie & West. R. R. Co., 175 U. S. 348; Minnesota 
 Iron Co. v. Kline, 199 U. S. 593; Narramore v. Cleveland 
 &c. R. R. Co., 96 Fed. Rep. 298, 302; Kilpatrick v. 
 Grand Trunk Ry. Co., 74 Vermont, 288; Schlemmer v.
 
 CONSTITUTIONAL DECISIONS 821 
 
 United States Supreme Court 
 
 Buff., Roch. & Pitts. Ry. Co., 205 U. S. 1, 11-14; Johnson 
 v. Southern Pacific Co., 196 U. S. 1. 
 
 Sections 3 and 4, concerning contributory negligence 
 and assumption of risk, are each clearly separable from 
 the rest of the statute; and even if they are unconstitu- 
 tional that would not affect the operation of the rest of 
 the act. El Paso &c. Ry. Co. v. Gutierrez, 215 U. S. 87. 
 
 Congress did not attempt, either in the act of 1908 or 
 that of April 5, 1910, to confer a new jurisdiction upon 
 state courts over actions in enforcement of the new Fed- 
 eral right; and, even if the act of April 5, 1910, should be 
 construed as embracing such an attempt, its invalidity 
 in that respect would not affect the substantive rules of 
 law established by the act of 1908. Nor can Congress 
 be considered to have made the operation of the sub- 
 stantive rules of law established by the act of 1908 
 dependent upon the willingness of all or any state courts 
 to take cognizance of actions founded upon those rules. 
 Hoxie v. N. Y., N. H. & H. R. R. Co., 73 Atl. Rep. 754, 
 762, is clearly wrong. 
 
 The act of 1908 did not try to give a new jurisdiction 
 of its own creation to the state courts. The act deals en- 
 tirely with rights and duties not with remedies. It 
 creates rules of substantive law. 
 
 The state courts, inasmuch as Congress did not give 
 exclusive jurisdiction to the Federal courts, could and 
 should use their general jurisdiction, given to them by 
 their state legislatures, in enforcement of the Federal 
 right. The privilege of the state courts so to use their 
 jurisdiction is undeniable, when neither Congress nor 
 the state legislature has withdrawn that privilege in a 
 particular case. The general grant of jurisdiction by 
 state law is sufficient to cover any right, whether created
 
 822 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 by the law of that State or of other States or of the 
 United States or of foreign countries. Congress has 
 left the state courts free to use that general jurisdiction, 
 by not prohibiting its use; and the terms of the State's 
 grant of jurisdiction cover the case. Claflin v. House- 
 man, 93 U. S. 130. 
 
 It is the duty, as well as the right, of the state courts 
 to take jurisdiction of actions under the Federal Em- 
 ployers' Liability Act. Report of the Senate Committee 
 on the Judiciary, March 22, 1910, 61st Congress, 2d 
 Session. 
 
 The statute makes no reference to remedies, and es- 
 tablishes the law independently of remedies. The clause 
 of 1910 about concurrent jurisdiction of the state courts 
 was obviously intended to prevent a mistaken and im- 
 portant reduction of remedies not to make new con- 
 ditions upon the operation of the original statute. 
 
 Further, the attitude of the state courts can make no 
 real difference in the operation of the statute. In the 
 first place, any claimant of the new Federal right can go 
 into a Federal court by simply laying his damages at 
 more than $2,000. In the second place, as already sug- 
 gested, this court can doubtless compel the state courts 
 to exercise in aid of the new Federal right such jurisdic- 
 tion as those courts have under state laws. 
 
 The act does not deprive a railroad of its property 
 without due process of law, in violation of the Fifth 
 Amendment. 
 
 Assuming that the due process requirement of the 
 Fifth Amendment is equivalent to the equal protection 
 of the laws required by the Fourteenth Amendment, the 
 authorities show that this court has already repeatedly 
 disposed of these objections to the act.
 
 CONSTITUTIONAL DECISIONS 823 
 
 United States Supreme Court 
 
 The following cases sustain state statutes abolishing 
 the fellow-servant rule upon railroads alone, against ex- 
 press attack under the Fourteenth Amendment: Mis- 
 souri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Minn. & 
 St. Louis R. R. Co. v. Herrick, 127 U. S. 210; Chicago 
 &c. R. R. Co. v. Pontius, 157 U. S. 209; Tuttis v. Lake 
 Erie & Northern R. R. Co., 175 U. S. 348; St. Louis 
 Bridge R. R. Co. v. Callahan, 194 U. S. 628; Minnesota 
 Iron Co. v. Kline, 199 U. S. 593; P., C., C. & St. L. R. R. 
 Co. v. Lightheiser, 212 U. S. 560; Louisville & Nashville 
 R. R. Co. v. Melton, 218 U. S. 36. 
 
 Pertinent support of other legislation making special 
 rules for railroads is found in Martin v. Pittsburg & 
 Lake Erie R. R. Co., 203 U. S. 284; St. Louis, I. M. & S. 
 Ry. Co. v. Paul, 173 U. S. 404; United States v. Delaware 
 & Hudson Co., 213 U. S. 366, 417. 
 
 Extension of the new rules to interstate employe's 
 generally was permissible. Their restriction to em- 
 ployes injured in consequence of special railroad hazard 
 was not required by the Constitution. 
 
 Of the cases above cited, concerning statutes abolish- 
 ing the fellow-servant rule upon railroads, the following 
 related to injuries which did not result from any peculiar 
 hazard: Chicago &c. R. R. Co. v. Pontius, 157 U. S. 
 209; St. Louis &c. Terminal R. R. Co. v. Callahan, 194 
 U. S. 628 (see the full facts in s. c., 170 Missouri, 473) ; 
 Minnesota Iron Co. v. Kline, 199 U. S. 593; Louisville 
 & Nashville R. R. Co. v. Melton, 218 U. S. 36. 
 
 El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 
 87, while not explicitly treating it, really covers the 
 exact point as presented under this legislation. 
 
 The cases at bar involve no question under 5 con- 
 cerning the validity of a contract exempting the carrier
 
 824 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 from responsibility under the rules of the statute. That 
 section is manifestly separable from the rest of the act. 
 Strong principle and much authority support its va- 
 lidity; but its palpable separableness makes discussion 
 of the section now unnecessary. McNamara v. Wash- 
 ington Terminal Co., 38 Wash. Law Rep. 343, in which 
 5 of the present act was construed and upheld. The 
 separableness of 5 is too plain for discussion. 
 
 Mr. John L. Hall for plaintiff in error in No. 289 and 
 defendant in error in No. 290 : 
 
 The act is not in itself a regulation of commerce. Gib- 
 bons v. Ogden, 9 Wheat. 196. 
 
 The Constitution which enumerates the powers of 
 the National Government is in itself a limitation upon 
 the power of Congress to legislate. United States v. 
 Knight, 156 U. S. 1, 11. 
 
 The Constitution guarantees the existence of the 
 powers of the state governments no less than it guaran- 
 tees the powers of the Federal Government. Cooley on 
 Const. Lim. 592; Ward v. Maryland, 12 Wall. 418. This 
 act is not one which plainly, logically, and directly 
 tends to promote commerce between the States. Hop- 
 kins v. United States, 171 U. S. 592. 
 
 In cases in which this court has described the power 
 of the States to legislate upon interstate commerce, 
 the legislation which has been under consideration has 
 always directly and logically affected the intercourse 
 between the States, see Hall v. DeCuir, 95 U. S. 485; 
 Robbins v. Shelby County Taxing District, 120 U. S. 489; 
 Brown v. Maryland, 4 Wash. C. C. 378; Gibbons v. 
 Ogden, 9 Wheat. 1; Crandall v. Nevada, 6 Wall. 35; 
 Wabash R. R. v. Illinois, 118 U. S. 557; Nashville &c.
 
 CONSTITUTIONAL DECISIONS 825 
 
 United States Supreme Court 
 
 R. R. v. Alabama, 128 U. S. 96; Osborne v. Florida, 164 
 U. S. 650; Pullman Co. v. Adams, 189 U. S. 420; Gladson 
 v. Minnesota, 166 U. S. 427; Illinois Central R. R. v. 
 Illinois, 163 U. S. 142. 
 
 The cases of Coe v. Errol, 116 U. S. 517; Cooper Mfg. 
 Co. v. Ferguson, 113 U. S. 727; N. Y., N. H. & H. R. R. 
 v. New York, 165 U. S. 628; Louisville &c. Ry. Co. v. 
 Mississippi, 133 U. S. 587; Hennington v. Georgia, 163 
 U. S. 299; Telegraph Co. v. James, 162 U. S. 650; Nash- 
 ville &c. Ry. v. Alabama, 128 U. S. 96, involve the con- 
 sideration of statutes which bear directly and naturally 
 upon the commerce itself. 
 
 Any regulation to come within the meaning of the 
 interstate commerce clause must be direct and logical 
 and not indirect, remote and merely incidental. Addys- 
 ton P. & S. Co. v. United States, 175 U. S. 211; Hooper 
 v. California, 155 U. S. 648; Munn v. Illinois, 94 U. S. 
 113; L. & N. Ry. v. Kentucky, 161 U. S. 677; Lake Shore 
 Ry. v. Smith, 173 U. S. 684. 
 
 The act does not declare that it regulates interstate 
 commerce. It prescribes no rule by which commerce is 
 to be governed ; it determines no conditions upon which 
 it shall be conducted. It does not seek to secure equality 
 and freedom against discrimination. It does not deter- 
 mine when it shall be free or when it shall be subject 
 to any duties or other burdens. See Minority Report 
 on the redraft of this bill known as H. R. No. 2310 of 
 the 60th Congress, 1st Session and Report No. 1386, 
 H. R., 60th Congress, 1st Session. 
 
 Cases arising under maritime law in which acts of 
 Congress upon the relations of owners of ships to the 
 owners of goods, upon the relations with passengers and 
 employe's, have been sustained, rest not on the com-
 
 826 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 merce clause but on the admiralty jurisdiction. Craig 
 v. Insurance Company, 141 U. S. 638; Butler v. Boston 
 S. S. Co., 130 U. S. 548; and see B. & 0. R. R. v. Mary- 
 land, 21 Wall. 456; In re Garnett et al, 141 U. S. 1; The 
 Daniel Ball, 10 Wall. 557; The Roanoke, 189 U. S. 185; 
 The Lottawanna, 21 Wall. 558. 
 
 Acts which are held constitutional when applied to 
 maritime regulation are not necessarily constitutional 
 when applied to commerce by land. 
 
 The Safety Appliance Acts are justified because it was 
 essential that States should not legislate as to the 
 instrumentalities which should be used by railroads. 
 Such legislation by States would interfere with inter- 
 state commerce and place a burden upon free and 
 rapid transportation. The legislation was national in 
 its character and required uniformity of regulation. 
 United States v. Southern Ry. Co., 164 Fed. Rep. 
 351. 
 
 This act invades the sovereignty of the States. Trade 
 Mark Cases, 100 U. S. 96; Barbier v. Connolly, 113 U. S. 
 27 ; Hooper v. California, 155 U. S. 648. 
 
 If Congress has the power to determine the liability 
 of a railroad company to its employe's simply because 
 both are engaged in interstate commerce, then it has 
 the same right to regulate the liability of a shipper to 
 its employe when engaged in interstate commerce. In 
 fact, there is scarcely any relation upon which it cannot 
 legislate. The States would be shorn of their power to 
 regulate their domestic affairs. Houston v. Moore, 5 
 Wheat. 1, 48; Keller v. United States, 213 U. S. 138; 
 Leisy v. Hardin, 135 U. S. 100; Pa. R. R. v. Knight, 192 
 U. S. 21; Chicago &c. R. R. v. Solan, 169 U. S. 133; 
 United States v. E. C. Knight Co., 156 U. S. I; Northern
 
 CONSTITUTIONAL DECISIONS 827 
 
 United States Supreme Court 
 
 Securities Co. v. United States, 193 U. S. 197; L. & N. 
 R. R. v. Kentucky, 161 U. S. 677. 
 
 The act regulates the relation of master and servant 
 as to things which are not exclusively interstate com- 
 merce. 
 
 It substantially reenacts in this particular the words 
 of the previous Employers' Liability Act, and must be 
 presumed to have been drafted with knowledge of the 
 judicial construction which those words had received. 
 Employers' Liability Cases, 207 U. S. 463. 
 
 An interstate carrier is also an intrastate carrier and 
 employes upon the same train may be engaged at the 
 same time in interstate and intrastate commerce; the 
 statute therefore confers a right of recovery upon em- 
 ployes engaged in intrastate commerce, and thus touches 
 the relation of master and servant as to matters con- 
 cerned with intrastate commerce. 
 
 The right of the State to regulate its commerce within 
 its own borders is paramount to the power of Congress 
 to regulate such commerce. The License Cases, 5 How. 
 504. 
 
 The act touches directly and seeks to regulate the 
 relation of master and servant as to intrastate business. 
 Hoxie v. N. Y., N. H. & H. R. R. Co., 82 Connecticut, 
 352, 368. 
 
 When Congress seeks to impose some new rule of 
 liability upon employers engaged in interstate commerce 
 it is imposing a rule of liability to the same extent in 
 effect upon those who are engaged in intrastate com- 
 merce. It denies the authority of the State to regulate 
 its domestic commerce, which is in no respect inferior 
 to the power of Congress to regulate interstate com- 
 merce. Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893.
 
 828 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 The act is unconstitutional in that it violates the 
 Fifth Amendment to the Constitution, which is a limi- 
 tation upon the power of Congress, while the Fourteenth 
 is a limitation upon the power of the States. The 
 purpose of both amendments is to secure the existence 
 of fundamental justice and to prevent capricious and 
 arbitrary legislation whereby unfair burdens are placed 
 upon one class of persons. 
 
 The construction placed upon one Amendment is 
 applicable to the other. San Mateo County v. So. Pac. 
 Ry., 13 Fed. Rep. 151; Dent v. West Virginia, 129 U. S. 
 114; Sinking Fund Cases, 99 U. S. 718; French v. Barber 
 Asphalt Co., 181 U. S. 324; Munn v. Illinois, 94 U. S. 
 123; Giozza v. Tiernan, 148 U. S. 657; Hurtado v. Cal- 
 ifornia, 110 U. S. 516; Gulf, Colorado &c. R. R. v. Ellis, 
 165 U. S. 150. 
 
 The act violates the Fifth Amendment because: It 
 imposes upon common carriers by rail engaged in inter- 
 state commerce liabilities which are not imposed upon 
 others engaged in interstate commerce; it deprives 
 common carriers by rail engaged in interstate commerce 
 of defenses which are available to others engaged in 
 interstate commerce; it limits the powers of contract 
 of common carriers by rail engaged in interstate com- 
 merce in their relations with their employes, and does 
 not limit such powers of others engaged in interstate 
 commerce. 
 
 Congress sought no reasonable or proper basis for 
 the classification, although its attention was directed 
 to the necessity for such a distinction. See Cong. Rec. 
 1908, 4433. Congress is not seeking to regulate inter- 
 state commerce by regulating the hazardous business 
 of operating a railroad, but is attempting to regulate
 
 CONSTITUTIONAL DECISIONS 829 
 
 United States Supreme Court 
 
 carriers by rail in all of their departments, and liability 
 is imposed in favor of all employes while engaged in 
 interstate commerce. 
 
 The Fifth Amendment insures equal protection of 
 the laws. It prevents distinctions and classifications, 
 unless the classifications are made upon some basis 
 which is natural and not arbitrary. Gulf, Colorado &c. 
 R. R. v. Ettis, 165 U. S. 150; Missouri Pacific Ry. v. 
 Mackey, 127 U. S. 205; Minneapolis &c. Ry. v. Herrick, 
 127 U. S. 210; Chicago &c. R. R. v. Pontius, 157 U. S. 
 209. 
 
 As a basis for classification by special legislation of 
 Congress, this court has no right to assume that the 
 majority of the members of the class who are favored 
 by this legislation are exposing their lives to extraordi- 
 nary risks when the facts are to the contrary. This 
 court will determine for itself the propriety of the clas- 
 sification. Lochner v. New York, 198 U. S. 45. 
 
 It is for this court to assume that those actually en- 
 gaged in the movement and operation of trains form a 
 greater part or even one-half of the total number of em- 
 ployes engaged in the business of interstate commerce 
 of any carrier by rail so engaged. 
 
 A classification is not justified by general considera- 
 tions when the reason for the classification applies to 
 less than one-fifth of the class selected. Accident 
 Insurance Manual, 365-371; 21st Report Interstate 
 Com. Comm. 153; and see Louisville & Nashville Ry. 
 v. Melton, 218 U. S. 36; Tullis v. Lake Erie & W. R. R., 
 175 U. S. 348; Magoun v. Illinois Trust & Savings 
 Bank, 170 U. S. 294; Orient Ins. Co. v. Daggs, 172 U. S. 
 557; Minnesota Iron Co. v. Kline, 199 U. S. 593; Martin 
 v. Pittsburg &c. R. R., 203 U. S. 284; Southwestern Oil
 
 830 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Co. v. Texas, 217 U. S. 114; Johnson v. Rij. Co., 43 
 Minnesota, 222, as to classifications, holding that one 
 rule of liability cannot be established for railway com- 
 panies merely as such and another rule for other em- 
 ployers under like circumstances, and that special 
 legislation to be not class legislation must not only 
 treat alike under the same conditions all who are brought 
 within its influence, but in its classification it must 
 bring within its influence all who are under the same 
 conditions. 
 
 The act has not included within its provisions the 
 interstate employe's of all other persons engaged in 
 interstate commerce. 
 
 It includes within its terms only one class of employers 
 who are engaged in interstate commerce; namely, rail- 
 roads. It discriminates against railroad companies en- 
 gaged in interstate commerce who operate and maintain 
 boats, wharves, docks and incidental equipment, and 
 other employers engaged in interstate commerce operat- 
 ing and maintaining boats, wharves, and incidental 
 equipment under precisely the same conditions. 
 
 The provisions of 5 violate the Fifth Amendment 
 in that they interfere with freedom of contract. Adair 
 v. United States, supra. 
 
 The right of contract is as well recognized as the right 
 to property. Allgeyer v. Louisiana, 165 U. S. 578; 
 Railroad Co. v. Richmond, 19 Wall. 584; Hoxie v. N. Y., 
 N. H. & H. R. R. Co., 82 Connecticut, 352, 369. 
 
 If the act is constitutional, plaintiff in this case can- 
 not recover as the employe must be engaged in inter- 
 state commerce at the time of his injury in order to 
 maintain his action under the statute, and the burden 
 is necessarily upon the plaintiff to show that at the time
 
 CONSTITUTIONAL DECISIONS 831 
 
 United States Supreme Court 
 
 of the injury he was not engaged in intrastate com- 
 merce. 
 
 The work performed by some employes may be prop- 
 erly described as dangerous, while the work performed 
 by other employes is subject to no more risks than the 
 ordinary occupations of life. There are employes en- 
 gaged in the direct movement and operation of trains; 
 employes engaged in the repair and maintenance of 
 tracks; those engaged in the construction and repair 
 of locomotives and cars; those whose duties are purely 
 commercial and clerical. See on this point Foley v. 
 Railroad, 64 Iowa, 644; Stroble v. Railroad, 70 Iowa, 
 555; Malone v. Railroad, 65 Iowa, 417; Johnson v. Rail- 
 road, 43 Minnesota, 222; Jemming v. Railroad, 96 
 Minnesota, 302; Missouri, K. & T. R. R. v. Medaris, 
 60 Kansas, 151; Indianapolis & G. R. R. v. Foreman, 
 162 Indiana, 85; Taylor v. Southern Railway, 178 Fed. 
 Rep. 380; St. Louis & St. F. R. R. v. Delk, 158 Fed. 
 Rep. 931. 
 
 The car involved in this case bore the same relation 
 to interstate commerce that it would have borne had 
 it been in the repair shop awaiting repairs, and under 
 those circumstances the men engaged in repairing the 
 car would not have been engaged in interstate commerce 
 or any other commerce. 
 
 The carrier is not liable for the negligence of an 
 intrastate employe. Zikos v. Oregon Railroad & Navi- 
 gation Co., 179 Fed. Rep. 893. 
 
 The act seeks to regulate the relations of the employer 
 to the members of the family of a deceased employe, 
 which Congress cannot do under its power to regulate 
 commerce. 
 
 In this respect the act invades the settled limits of the
 
 832 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 sovereignty of the States, Williams v. Fears, 179 U. S. 
 270, and also seeks to determine the administration 
 of the estates of deceased persons. Congress has not 
 the power to create the duties of an administrator. The 
 power of the administrator is limited by the authority 
 granted him by the State which created his office. 
 
 A strict construction of this statute, which alters the 
 common law, is required, and no sufficient provision 
 has been made for the assessment of damages. Sewall 
 v. Jones, 26 Massachusetts, 9 Pick. 412; United States 
 v. Fisher, 2 Cranch, 358; Shaw v. Railroad Co., 101 U. S. 
 557. 
 
 Mr. Endicott P. Saltonstall, with whom Mr. George D. 
 Burr age was on the brief, for plaintiff in error in No. 290, 
 and defendant in error in No. 289: 
 
 The Employers' Liability Act of 1906 was declared 
 unconstitutional because it was addressed to all common 
 carriers engaged in interstate commerce, and imposed 
 a liability upon them in favor of any of their employes, 
 without qualification or restriction as to the business in 
 which the carriers or their employes might be engaged 
 at the time of the injury. Employers' Liability Cases, 
 207 U. S. 498. 
 
 Immediately thereafter Congress enacted the act of 
 April 22, 1908, and met the objections to the former act. 
 See report of House Committee on the Judiciary on 
 House Bill 20310; Thornton's Employers' Liability, 
 247-260. The act has been passed on and upheld in 
 Watson v. St. Louis, I. M. & S. Ry. Co., 169 Fed. Rep. 
 942; Colasurdo v. Central R. R. of N. J., 180 Fed. Rep. 
 832; Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893; 
 Fulgham v. Midland Valley R. Co., 167 Fed. Rep. 660;
 
 CONSTITUTIONAL DECISIONS 833 
 
 United States Supreme Court 
 
 Winfree v. Northern Pac. Ry. Co., 173 Fed. Rep. 65; 
 Dewberry v. Southern Ry. Co., 175 Fed. Rep. 307 ; Bottoms 
 v. St. Louis & S. F. R. Co., 179 Fed. Rep. 318, and held 
 unconstitutional only in Hoxie v. N. Y., N. H. & H. R. 
 R. Co., 82 Connecticut, 354, and Mondou v. Same, 82 
 Connecticut, 373. 
 
 Congress has power to regulate the relations of master 
 and servant as between an interstate carrier and an 
 interstate employ^. State v. Chicago, M. & St. Paul R. 
 Co., 136 Wisconsin, 407, at 410. 
 
 Congress has power, in regulating the relations of 
 master and servant, as aforesaid, to make an interstate 
 carrier liable to an interstate employe for the negligence 
 of an intrastate employe. Watson v. St. Louis &c. Ry. 
 Co., supra; United States v. Col. & N. W. R. R. Co., 
 157 Fed. Rep. 321; The Daniel Ball, 10 Wall. 557, 566; 
 In re Debs, 158 U. S. 564, 599; United States v. Burling- 
 ton &c. Ferry Co., 21 Fed. Rep. 331, 340; The Hazel 
 Kirke, 25 Fed. Rep. 601, 607. 
 
 If the act is constitutional, but applies only where 
 the negligent fellow servant is engaged in interstate 
 commerce, the road is liable, as there was evidence that 
 the negligence which caused the accident was that of 
 interstate employes. 
 
 The provisions of the act in this respect are separable, 
 and liability may be upheld where the injury is caused 
 by an interstate employe, although denied where caused 
 by an intrastate employe. Zikos v. Oregon R. & N. Co., 
 supra. 
 
 The act does not violate either the Fifth or the Four- 
 teenth Amendment. Missouri Pacific Ry. Co. v. Mackeys, 
 127 U. S. 205; Minneapolis &c. Ry. Co. v. Herrick, 127 
 U. S. 210; Chicago &c. R. R.v. Pontius, 157 U. S. 209; 
 53
 
 834 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Louisville & Nashvilk R. R. Co. v. Melton, 218 U. S. 36; 
 Tullis v. Lake Erie & W. R. R. Co., 175 U. S. 348; 
 Pittsburg &c. Ry. Co. v. Ross, 212 U. S. 560. 
 
 Congress has power to provide a remedy to an injured 
 employe of an interstate carrier as provided in 3 of the 
 act. The Max Morris, 137 U. S. 1, 14; Johnson v. South- 
 ern Pacific Co., 196 U. S. 1; Schlemmer v. Buffalo &c. 
 Ry. Co., 205 U. S. 1. 
 
 The common-law rule that contributory negligence 
 is a bar to recovery may be altered or abolished by the 
 legislature whenever, in its discretion, it sees fit to do so. 
 Munn v. Illinois, 94 U. S. 113, 134; Hurtado v. People 
 of California, 110U.S.516; see also Wilmington Mining 
 Co. v. Fulton, 205 U. S. 60, 74; Bertholfv. O'Reilly, 74 N. 
 Y. 509, 524. 
 
 A legislature may by statute extend the common-law 
 liability of a railroad, Chicago &c. Ry. Co. v. Zernecke, 
 183 U. S. 582; St. Louis &c. Ry. Co. v. Taylor, 210 U. S. 
 281 ; or limit it, Martin v. Pittsburg &c. R. R., 203 U. S. 
 284. 
 
 The act is not invalid as violating the constitution and 
 statutes of Connecticut, because it has been held un- 
 constitutional in that State. Nashvilk &c. Ry. Co. v. 
 Alabama, 128 U. S. 96, 99. 
 
 It is not necessary that an act of this nature should 
 make any provision for the assessment of damages. If 
 it makes none, the jury will be instructed as to the man- 
 ner of assessing damages, and these instructions will be 
 based upon the principles of the common law governing 
 actions of tort for personal injury. 
 
 The Safety Appliance Act is a penal statute, and there 
 are no words specifically giving an injured employe* a 
 right of action for damages, much less providing how
 
 CONSTITUTIONAL DECISIONS 835 
 
 United States Supreme Court 
 
 those damages shall be assessed. Johnson v. Southern 
 Pac. Co., supra; Schlemmer v. Buffalo &c. Ry. Co., supra. 
 
 Congress can create such a right of action in favor of 
 personal representatives of an inhabitant of a State. 
 
 Congress may, within constitutional limits, alter or 
 modify the common law. A state statute as to distri- 
 bution of estates can stand on no higher ground. Sher- 
 lock v. Ailing, 93 U. S. 99, 104. 
 
 Congress has power to abolish the doctrine of as- 
 sumption of risk, as provided in 4 of the act. Johnson 
 v. Southern Pac. Co.; Schlemmer v. Buffalo &c. R. Co., 
 supra. 
 
 Congress has power to declare void a contract which 
 enables a common carrier to exempt itself from liability 
 under the act, as provided in 5. 
 
 The company and the deceased were engaged in 
 interstate commerce at the tune of the accident. 
 
 The car which was backed or " kicked" down upon 
 the car under which Walsh was working was a car 
 belonging to the company, coupled to an Erie flat car. 
 
 The single fact that the car which deceased undertook 
 to repair contained perishable freight brought from out- 
 side the State where the accident happened is sufficient 
 to show that the company was engaged in interstate 
 commerce at the time. The Daniel Ball, supra; Wabash 
 &c. Ry. Co. v. Illinois, 118 U. S. 557; Norfolk &c. Ry. Co. 
 v. Pennsylvania, 136 U. S. 114; United States v. Col. & 
 Northwestern Ry. Co., supra; and see also United States 
 v. Chicago &c. Ry. Co., 149 Fed. Rep. 486, 490; United 
 States v. St. Louis &c. R. Co., 154 Fed. Rep. 516; United 
 States v. Illinois Cent. R. R., 156 Fed. Rep. 182, 193; 
 United States v. Wheeling &c. R. R. Co., 167 Fed. Rep. 
 198; Wabash R. Co. v. United States, 168 Fed. Rep. 1;
 
 836 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Belt Ry. Co. v. United States, 168 Fed. Rep. 542; Chicago 
 June. Ry. Co. v. King, 169 Fed. Rep. 372; United States 
 v. Southern Ry. Co., 170 Fed. Rep. 1014; Johnson v. 
 Great Northern Ry. Co., 178 Fed. Rep. 643, 646; Felt 
 v. Denver &c. R. Co., 110 Pac. Rep. 215. 
 
 MR. JUSTICE VAN DEVANTER, after stating the cases 
 as above, delivered the opinion of the court. 
 
 The principal questions presented in these cases as 
 discussed at the bar and in the briefs are: 1. May Con- 
 gress, in the exertion of its power over interstate com- 
 merce, regulate the relations of common carriers by 
 railroad and their employes while both are engaged in 
 such commerce? 2. Has Congress exceeded its power in 
 that regard by prescribing the regulations which are 
 embodied in the act in question? 3. Do those regula- 
 tions supersede the laws of the States in so far as the 
 latter cover the same field? 4. May rights arising under 
 those regulations be enforced, as of right, in the courts 
 of the States when their jurisdiction, as fixed by local 
 laws, is adequate to the occasion? 
 
 The clauses in the Constitution (Article I, 8, clauses 
 3 and 18) which confer upon Congress the power "to 
 regulate commerce * * * among the several States " 
 and "to make all laws which shall be necessary and 
 proper" for the purpose have been considered by this 
 court so often and in such varied connections that some 
 propositions bearing upon the extent and nature of this 
 power have come to be so firmly settled as no longer 
 to be open to dispute, among them being these: 
 
 1. The term "commerce" comprehends more than 
 the mere exchange of goods. It embraces commercial
 
 CONSTITUTIONAL DECISIONS 837 
 
 United States Supreme Court 
 
 intercourse in all its branches, including transportation 
 of passengers and property by common carriers, whether 
 carried on by water or by land. 
 
 2. The phrase "among the several States" marks 
 the distinction, for the purpose of governmental regula- 
 tion, between commerce which concerns two or more 
 States and commerce which is confined to a single State 
 and does not affect other States, the power to regulate 
 the former being conferred upon Congress and the regu- 
 lation of the latter remaining with the States severally. 
 
 3. "To regulate," in the sense intended, is to foster, 
 protect, control and restrain, with appropriate regard 
 for the welfare of those who are immediately concerned 
 and of the public at large. 
 
 4. This power over commerce among the States, so 
 conferred upon Congress, is complete in itself, extends 
 incidentally to every instrument and agent by which 
 such commerce is carried on, may be exerted to its 
 utmost extent over every part of such commerce, and 
 is subject to ho limitations save such as are prescribed 
 in the Constitution. But, of course, it does not extend 
 to any matter or thing which does not have a real or 
 substantial relation to some part of such commerce. 
 
 5. Among the instruments and agents to which the 
 power extends are the railroads over which transporta- 
 tion from one State to another is conducted, the engines 
 and cars by which such transportation is effected, and 
 all who are in anywise engaged in such transportation, 
 whether as common carriers or as their employes. 
 
 6. The duties of common carriers in respect of the 
 safety of their employes, while both are engaged in 
 commerce among the States, and the liability of the 
 former for injuries sustained by the latter, while both
 
 838 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 are so engaged, have a real or substantial relation to 
 such commerce, and therefore are within the range of 
 this power. Cooley v. Board of Wardens, 12 How, 299, 
 315-317; The Lottawanna, 21 Wall. 558, 577; Sherlock v. 
 Ailing, 93 U. S. 99, 103-105; Smith v. Alabama, 124 
 U. S. 465, 479; Nashville &c. Ry. Co. v. Alabama, 128 
 U. S. 96, 99; Peirce v. Van Dusen, 78 Fed. Rep. 693, 
 698-700; Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 
 368, 378; Patterson v. Bark Eudora, 190 U. S. 169, 176; 
 Johnson v. Southern Pacific Co., 196 U. S. 1; Schlemmer 
 v. Buffalo &c. Ry. Co., 205 U. S. 1 ; Employers' Liability 
 Cases, 207 U. S. 463, 495; Adair v. United States, 208 
 U. S. 161, 176-178; Baltimore & Ohio R. R. Co. v. Inter- 
 state Commerce Commission, 221 U. S. 612, 618; Southern 
 Railway Co. v. United States, 222 U. S. 20. 
 
 As is well said in the brief prepared by the late Solici- 
 tor General: " Interstate commerce if not always, at 
 any rate when the commerce is transportation is an 
 act. Congress, of course, can do anything which, in the 
 exercise by itself of a fair discretion, may be deemed 
 appropriate to save the act of interstate commerce from 
 prevention or interruption, or to make that act more 
 secure, more reliable or more efficient. The act of inter- 
 state commerce is done by the labor of men and with 
 the help of things; and these men and things are the 
 agents and instruments of the commerce. If the agents 
 or instruments are destroyed while they are doing the 
 act, commerce is stopped; if the agents or instruments 
 are interrupted, commerce is interrupted; if the agents 
 or instruments are not of the right kind or quality, 
 commerce in consequence becomes slow or costly or 
 unsafe or otherwise inefficient; and if the conditions 
 under which the agents or instruments do the work of
 
 CONSTITUTIONAL DECISIONS 839 
 
 United States Supreme Court 
 
 commerce are wrong or disadvantageous, those bad 
 conditions may and often will prevent or interrupt the 
 act of commerce or make it less expeditious, less reliable, 
 less economical and less secure. Therefore, Congress 
 may legislate about the agents and instruments of 
 interstate commerce, and about the conditions under 
 which those agents and instruments perform the work 
 of interstate commerce, whenever such legislation bears, 
 or in the exercise of a fair legislative discretion can be 
 deemed to bear, upon the reliability or promptness or 
 economy or security or utility of the interstate commerce 
 act." 
 
 In view of these settled propositions, it does not 
 admit of doubt that the answer to the first of the ques- 
 tions before stated must be that Congress, in the exer- 
 tion of its power over interstate commerce, may regulate 
 the relations of common carriers by railroads and their 
 employes, while both are engaged in such commerce, 
 subject always to the limitations prescribed in the Con- 
 stitution, and to the qualification that the particulars 
 in which those relations are regulated must have a real 
 or substantial connection with the interstate commerce 
 in which the carriers and their employes are engaged. 
 
 We come, then, to inquire whether Congress has ex- 
 ceeded its power in that regard by prescribing the regu- 
 lations embodied in the present act. It is objected that 
 it has (1) because the abrogation of the fellow-servant 
 rule, the extension of the carrier's liability to cases of 
 death, and the restriction of the defenses of contributory 
 negligence and assumption of risk have no tendency to 
 promote the safety of the employes or to advance the 
 commerce in which they are engaged; (2) because the 
 liability imposed for injuries sustained by one employe"
 
 840 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 through the negligence of another, although confined 
 to instances where the injured employe is engaged in 
 interstate commerce, is not confined to instances where 
 both employes are so engaged; and (3) because the act 
 offends against the Fifth Amendment to the Constitu- 
 tion (a) by unwarrantably interfering with the liberty 
 of contract and (b) by arbitrarily placing all employers 
 engaged in interstate commerce by railroad in a dis- 
 favored class and all their employe's engaged in such 
 commerce in a favored class. 
 
 Briefly stated, the departures from the common law 
 made by the portions of the act against which the first 
 objection is leveled are these : (a) The rule that the negli- 
 gence of one employe resulting in injury to another was 
 not to be attributed to their common employer, is dis- 
 placed by a rule imposing upon the employer responsi- 
 bility for such an injury, as was done at common law 
 when the injured person was not an employe; (b) the 
 rule exonerating an employer from liability for injury 
 sustained by an employe through the concurring negli- 
 gence of the employer and the employe" is abrogated in 
 all instances where the employer's violation of a statute 
 enacted for the safety of his employes contributes to 
 the injury, and in other instances is displaced by the 
 rule of comparative negligence, whereby the exonera- 
 tion is only from a proportional part of the damages 
 corresponding to the amount of negligence attributable 
 to the employe; (c) the rule that an employe was deemed 
 to assume the risk of injury, even if due to the employer's 
 negligence, where the employe voluntarily entered or 
 remained in the service with an actual or presumed 
 knowledge of the conditions out of which the. risk arose, 
 is abrogated in all instances where the employer's viola-
 
 CONSTITUTIONAL DECISIONS 841 
 
 United States Supreme Court 
 
 tion of a statute enacted for the safety of his employe's 
 contributed to the injury; and (d) the rule denying a 
 right of action for the death of one person caused by the 
 wrongful act or neglect of another is displaced by a rule 
 vesting such a right of action in the personal represent- 
 atives of the deceased for the benefit of designated 
 relatives. 
 
 Of the objection to these changes it is enough to 
 observe : 
 
 First. " A person has no property, no vested interest, 
 in any rule of the common law. That is only one of 
 the forms of municipal law, and is no more sacred than 
 any other. Rights of property which have been created 
 by the common law cannot be taken away without due 
 process ; but the law itself, as a rule of conduct, may be 
 changed at the will * * * of the legislature, unless 
 prevented by constitutional limitations. Indeed, the 
 great office of statutes is to remedy defects in the com- 
 mon law as they are developed, and to adapt it to the 
 changes of time and circumstances." Munn v. Illinois, 
 94 U. S. 113, 134; Martin v. Pittsburg & Lake Erie R. R. 
 Co., 203 U. S. 284, 294; The Lottawanna, 21 Wall. 558, 
 577; Western Union Telegraph Co. v. Commercial Milling 
 Co., 218 U. S. 406, 417. 
 
 Second. The natural tendency of the changes de- 
 scribed is to impel the carriers to avoid or prevent the 
 negligent acts and omissions which are made the bases 
 of the rights of recovery which the statute creates and 
 defines; and, as whatever makes for that end tends 
 to promote the safety of the employes and to advance 
 the commerce in which they are engaged, we entertain 
 no doubt that in making those changes Congress acted 
 within the limits of the discretion confided to it by the
 
 842 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 Constitution. Lottery Case, 188 U. S. 321, 353, 355; 
 Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 
 U. S. 186, 203. 
 
 We are not unmindful that that end was being meas- 
 urably attained through the remedial legislation of the 
 several States, but that legislation has been far from 
 uniform, and it undoubtedly rested with Congress to 
 determine whether a national law, operating uniformly 
 in all the States upon all carriers by railroad engaged in 
 interstate commerce, would better subserve the needs 
 of that commerce. The Lottawanna, 21 Wall. 558, 
 581-582; Baltimore & Ohio R. R. v. Baugh, 149 U. S. 
 368, 378-379. 
 
 The second objection proceeds upon the theory that, 
 even although Congress has power to regulate the 
 liability of a carrier for injuries sustained by one em- 
 ploye through the negligence of another where all are 
 engaged in interstate commerce, that power does not 
 embrace instances where the negligent employe" is 
 engaged in intrastate commerce. But this is a mistaken 
 theory, in that it treats the source of the injury, rather 
 than its effect upon interstate commerce, as the criterion 
 of congressional power. As was said in Southern Railway 
 Co. v. United States, 222 U. S. 20, 27, that power is 
 plenary and competently may be exerted to secure the 
 safety of interstate transportation and of those who are 
 employed therein, no matter what the source of the 
 dangers which threaten it. The present act, unlike the 
 one condemned in Employers 1 Liability Cases, 207 U. S. 
 463, deals only with the liability of a carrier engaged 
 in interstate commerce for injuries sustained by its 
 employes while engaged in such commerce. And this 
 being so, it is not a valid objection that the act embraces
 
 CONSTITUTIONAL DECISIONS 843 
 
 United States Supreme Court 
 
 instances where the causal negligence is that of an em- 
 ploye engaged in intrastate commerce; for such negli- 
 gence, when operating injuriously upon an employe 
 engaged in interstate commerce, has the same effect 
 upon that commerce as if the negligent employe" were 
 also engaged therein. 
 
 Next in order is the objection that the provision in 
 5, declaring void any contract, rule, regulation or 
 device, the purpose or intent of which is to enable a 
 carrier to exempt itself from the liability which the act 
 creates, is repugnant to the Fifth Amendment to the 
 Constitution as an unwarranted interference with the 
 liberty of contract. But of this it suffices to say, in 
 view of our recent decisions in Chicago, Burlington & 
 Quincy Railroad Co. v. McGuire, 219 U. S. 549; Atlantic 
 Coast Line Railroad Co. v. Riverside Mills, 219 U. S. 
 186, and Baltimore & Ohio Railroad Co. v. Interstate 
 Commerce Commission, 221 U. S. 612, that if Congress 
 possesses the power to impose that liability, which we 
 here hold that it does, it also possesses the power to 
 insure its efficacy by prohibiting any contract, rule, 
 regulation or device in evasion of it. 
 
 Coming to the question of classification, it is true 
 that the liability which the act creates is imposed only 
 on interstate carriers by railroad, although there are 
 other interstate carriers, and is imposed for the benefit 
 of all employes of such carriers by railroad who are 
 employed in interstate commerce, although some are 
 not subjected to the peculiar hazards incident to the 
 operation of trains or to hazards that differ from those 
 to which other employes in such commerce, not within 
 the act, are exposed. But it does not follow that this 
 classification is violative of the "due process of law"
 
 844 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 clause of the Fifth Amendment. Even if it be assumed 
 that that clause is equivalent to the "equal protection 
 of the laws " clause of the Fourteenth Amendment, 
 which is the most that can be claimed for it here, it 
 does not take from Congress the power to classify, nor 
 does it condemn exertions of that power merely because 
 they occasion some inequalities. On the contrary, it 
 admits of the exercise of a wide discretion in classifying 
 according to general, rather than minute, distinctions, 
 and condemns what is done only when it is without any 
 reasonable basis, and therefore is purely arbitrary. 
 Lindsley v. Carbonic Gas Co., 220 U. S. 61, 78. Tested 
 by these standards, this classification is not objection- 
 able. Like classifications of railroad carriers and em- 
 ployes for like purposes, when assailed under the equal 
 protection clause, have been sustained by repeated de- 
 cisions of this court. Missouri Pacific Railway Co. v. 
 Mackey, 127 U. S. 205; Louisville & Nashville Railroad 
 Co. v. Melton, 218 U. S. 36; Mobile, Jackson & Kansas 
 City Railroad Co. v. Turnipseed, 219 U. S. 35. 
 
 It follows that the answer to the second of the ques- 
 tions before stated must be that Congress has not 
 exceeded its power by prescribing the regulations 
 embodied in the present act. 
 
 The third question, whether those regulations super- 
 sede the laws of the States in so far as the latter cover 
 the same field, finds its answers in the following extracts 
 from the opinion of Chief Justice Marshall in McCulloch 
 v. Maryland, 4 Wheat. 316: 
 
 (p. 405) "If any one proposition could command 
 the universal assent of mankind, we might expect it 
 would be this: that the government of the Union, 
 though limited in its powers, is supreme within its
 
 CONSTITUTIONAL DECISIONS 845 
 
 United States Supreme Court 
 
 sphere of action. This would seem to result necessarily 
 from its nature. It is the government of all; its powers 
 are delegated by all; it represents all, and acts for all. 
 Though any one State may be willing to control its 
 operations, no State is willing to allow others to control 
 them. The nation, on those subjects on which it can 
 act, must necessarily bind its component parts. But 
 this question is not left to mere reason : the people have, 
 in express terms, decided it, by saying/ this constitution, 
 and the laws of the United States, which shall be made 
 in pursuance thereof, * * * shall be the supreme law 
 of the land,' and by requiring that the members of 
 the state legislatures, and the officers of the executive 
 and judicial departments of the States, shall take the 
 oath of fidelity to it. The government of the United 
 States, then, though limited in its powers, is supreme: 
 and its laws, when made in pursuance of the consti- 
 tution, form the supreme law of the land, 'anything in 
 the constitution or laws of any State, to the contrary 
 notwithstanding. ' 
 
 (p. 426) "This great principle is, that the constitution 
 and the laws made in pursuance thereof are supreme; 
 that they control the constitution and laws of the re- 
 spective States, and cannot be controlled by them." 
 
 And particularly apposite is the repetition of that 
 principle in Smith v. Alabama, 124 U. S. 465, 473: 
 
 " The -grant of power to Congress in the Constitution 
 to regulate commerce with foreign nations and among 
 the several States, it is conceded, is paramount over all 
 legislative powers which, in consequence of not having 
 been granted to Congress, are reserved to the States. 
 It follows that any legislation of a State, although in pur- 
 suance of an acknowledged power reserved to it, which
 
 846 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 conflicts with the actual exercise of the power of Congress 
 over the subject of commerce, must give way before 
 the supremacy of the national authority." 
 
 True, prior to the present act the laws of the several 
 States were regarded as determinative of the liability 
 of employers engaged in interstate commerce for in- 
 juries received by their employes while engaged in such 
 commerce. But that was because Congress, although 
 empowered to regulate that subject, had not acted 
 thereon, and because the subject is one which falls 
 within the police power of the States in the absence of 
 action by Congress. Sherlock v. Ailing, 93 U. S. 99; 
 Smith v. Alabama, 124 U. S. 465, 473, 480, 482; Nash- 
 ville &c. Railway v. Alabama, 128 U. S. 96, 99; Reid v. 
 Colorado, 187 U. S. 137, 146. The inaction of Congress, 
 however, in no wise affected its power over the subject. 
 The Lottawanna, 21 Wall. 558, 581 ; Gloucester Ferry Co. 
 v. Pennsylvania, 114 U. S. 196, 215. And now that 
 Congress has acted, the laws of the States, in so far as 
 they cover the same field, are superseded, for necessarily 
 that which is not supreme must yield to that which is. 
 Gulf, Colorado & Santa Fe Railway Co. v. Hefley, 158 
 U. S. 98, 104; Southern Railway Co. v. Reid, 222 U. S. 
 424; Northern Pacific Railway Co. v. Washington, 222 
 U. S. 370. 
 
 We come next to consider whether rights arising 
 under the congressional act may be enforced, as of 
 right, in the courts of the States when their jurisdiction, 
 as prescribed by local laws, is adequate to the occasion. 
 The first of the cases now before us was begun in one 
 of the Superior Courts of the State of Connecticut, and, 
 in that case, the Supreme Court of Errors of the State 
 answered the question in the negative. That, however,
 
 CONSTITUTIONAL DECISIONS 847 
 
 United States Supreme Court 
 
 was not because the ordinary jurisdiction of the Su- 
 perior Courts, as defined by the constitution and laws 
 of the State, was deemed inadequate or not adapted to- 
 the adjudication of such a case, but because the Su- 
 preme Court of Errors was of opinion (1) that the 
 congressional act impliedly restricts the enforcement of 
 the rights which it creates to the Federal courts, and 
 (2) that, if this be not so, the Superior Courts are at 
 liberty to decline cognizance of actions to enforce 
 rights arising under that act, because (a) the policy 
 manifested by it is not in accord with the policy of the 
 State respecting the liability of employers to employe's 
 for injuries received by the latter while in the service 
 of the former, and (b) it would be inconvenient and 
 confusing for the same court, in dealing with cases of 
 the same general class, to apply in some the standards 
 of right established by the congressional act and in 
 others the different standards recognized by the laws 
 of the State. 
 
 We are quite unable to assent to the view that the 
 enforcement of the rights which the congressional act 
 creates was originally intended to be restricted to the 
 Federal courts. The act contains nothing which is 
 suggestive of such a restriction, and in this situation the 
 intention of Congress was reflected by the provision 
 in the general jurisdictional act, "That the circuit 
 courts of the United States shall have original cogni- 
 zance, concurrent with the courts of the several States, of 
 all suits of a civil nature, at common law or in equity, 
 where the matter in dispute exceeds, exclusive of in- 
 terest and costs, the sum or value of two thousand 
 dollars, and arising under the Constitution or laws of the 
 United States." August 13, 1888, 25 Stat. 433, c. 866,
 
 848 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 1. Robb v. Connolly, 111 U. S. 624, 637; United States 
 v. Barnes, 222 U. S. 513. This is emphasized by the 
 amendment engrafted upon the original act in 1910, to 
 the effect that "The jurisdiction of the courts of the 
 United States under this Act shall be concurrent with 
 that of the courts of the several States, and no case arising 
 under this Act and brought in any state court of com- 
 petent jurisdiction shall be removed to any court of the 
 United States." The amendment, as appears by its 
 language, instead of granting jurisdiction to the state 
 courts, presupposes that they already possessed it. 
 
 Because of some general observations in the opinion 
 of the Supreme Court of Errors, and to the end that the 
 remaining ground of decision advanced therein may be 
 more accurately understood, we deem it well to observe 
 that there is not here involved any attempt by Congress 
 to enlarge or regulate the jurisdiction of state courts or 
 to control or affect their modes of procedure, but only a 
 question of the duty of such a court, when its ordinary 
 jurisdiction as prescribed by local laws is appropriate 
 to the occasion and is invoked in conformity with those 
 laws, to take cognizance of an action to enforce a right 
 of civil recovery arising under the act of Congress and 
 susceptible of adjudication according to the prevailing 
 rules of procedure. We say "when its ordinary juris- 
 diction as prescribed by local laws is appropriate to the 
 occasion," because we are advised by the decisions of 
 the Supreme Court of Errors that the Superior Courts 
 of the State are courts of general jurisdiction, are em- 
 powered to take cognizance of actions to recover for 
 personal injuries and for death, and are accustomed to 
 exercise that jurisdiction, not only in cases where the 
 right of action arose under the laws of that State, but
 
 CONSTITUTIONAL DECISIONS 849 
 
 United States Supreme Court 
 
 also in cases where it arose in another State, under its 
 laws, and in circumstances in which the laws of Con- 
 necticut give no right of recovery, as where the causal 
 negligence was that of a fellow servant. 
 
 The suggestion that the act of Congress is not in har- 
 mony with the policy of the State, and therefore that 
 the courts of the State are free to decline jurisdiction 
 is quite inadmissible, because it presupposes what in 
 legal contemplation does not exist. When Congress, 
 in the exertion of the power confided to it by the Con- 
 stitution, adopted that act, it spoke for all the people 
 and all the States, and thereby established a policy for 
 all. That policy is as much the policy of Connecticut 
 as if the act had emanated from its own legislature, 
 and should be respected accordingly in the courts of 
 the State. As was said by this court in Claflin v. House- 
 man, 93 U.S. 130, 136, 137: 
 
 "The laws of the United States are laws in the several 
 States, and just as much binding on the citizens and 
 courts thereof as the state laws are. The United States 
 is not a foreign sovereignty as regards the several 
 States, but is a concurrent, and, within its jurisdiction, 
 paramount sovereignty. * * * If an act of Congress 
 gives a penalty [meaning civil and remedial] to a party 
 aggrieved, without specifying a remedy for its enforce- 
 ment, there is no reason why it should not be enforced, 
 if not provided otherwise by some act of Congress, by a 
 proper action in a state court. The fact that a state 
 court derives its existence and functions from the state 
 laws is no reason why it should not afford relief; because 
 it is subject also to the laws of the United States, and 
 is just as much bound to recognize these as operative 
 within the State as it is to recognize the state laws. 
 54
 
 850 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 United States Supreme Court 
 
 The two together form one system of jurisprudence, 
 which constitutes the law of the land for the State; and 
 the courts of the two jurisdictions are not foreign to 
 each other, nor to be treated by each other as such, but 
 as courts of the same country, having jurisdiction partly 
 different and partly concurrent. * * * It is true, the 
 sovereignties are distinct, and neither can interfere 
 with the proper jurisdiction of the other, as was so 
 clearly shown by Chief Justice Taney, in the case of 
 Ableman v. Booth, 21 How. 506; and hence the state 
 courts have no power to revise the action of the Federal 
 courts, nor the Federal the state, except where the 
 Federal Constitution or laws are involved. But this 
 is no reason why the state courts should not be open for 
 the prosecution of rights growing out of the laws of the 
 United States, to which their jurisdiction is competent, 
 and not denied." 
 
 We are not disposed to believe that the exercise of 
 jurisdiction by the state courts will be attended by any 
 appreciable inconvenience or confusion; but, be this as 
 it may, it affords no reason for declining a jurisdiction 
 conferred by law. The existence of the jurisdiction 
 creates an implication of duty to exercise it, and that 
 its exercise may be onerous does not militate against 
 that implication. Besides, it is neither new nor unusual 
 in judicial proceedings to apply different rules of law 
 to different situations and subjects, even although 
 possessing some elements of similarity, as where the 
 liability of a public carrier for personal injuries turns 
 upon whether the injured person was a passenger, an 
 employe or a stranger. But it never has been supposed 
 that courts are at liberty to decline cognizance of cases 
 of a particular class merely because the rules of law to
 
 CONSTITUTIONAL DECISIONS 851 
 
 United States Supreme Court 
 
 be applied in their adjudication are unlike those applied 
 in other cases. 
 
 We conclude that rights arising under the act in 
 question may be enforced, as of right, in the courts of 
 the States when their jurisdiction, as prescribed by 
 local laws, is adequate to the occasion. 
 
 In No. 289 several rulings in the progress of the 
 cause, not covered by what already has been said, are 
 called in question, but it suffices to say of them that 
 they have been carefully considered, and that we find 
 no reversible error in them. 
 
 In Nos. 170, 289 and 290 the judgments are affirmed, 
 and in No. 120 the judgment is reversed and the cause 
 is remanded for further proceedings not inconsistent 
 with this opinion.
 
 CHAPTER XXXIX 
 
 TEXTS OF THE COMPENSATION AND STATE INSUR- 
 ANCE ACTS 
 
 Page 
 
 BRITISH 852 
 
 CALIFORNIA 872 
 
 ILLINOIS 895 
 
 KANSAS 913 
 
 MASSACHUSETTS 935 
 
 MICHIGAN 955 
 
 NEVADA. . . 989 
 
 Page 
 
 NEW HAMPSHIRE 998 
 
 NEW JERSEY 1006 
 
 OHIO 1021 
 
 RHODE ISLAND AND PROV- 
 IDENCE PLANTATIONS . . 1033 
 
 WASHINGTON 1058 
 
 WISCONSIN. . . 1091 
 
 BRITISH WORKMEN'S COMPENSATION ACT, 1906 
 
 (6 Edw. VII, c. 58) 
 
 An act to consolidate and amend the law with respect to 
 Compensation to Workmen for Injuries suffered in the 
 course of their Employment (21st, December, 1906). 
 
 Be it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament as- 
 sembled, and by the authority of the same, as follows: 
 
 (1) If in any employment personal injury by accident 
 arising out of and in the course of the employment is caused 
 to a workman, his employer shall, subject as hereinafter 
 mentioned, be liable to pay compensation in accordance 
 with the first schedule to this act. 
 
 (2) Provided that 
 
 (a) The employer shall not be liable under this act 
 in respect of any injury which does not disable the 
 852
 
 TEXTS OF COMPENSATION ACTS 853 
 
 British 
 
 workman for a period of at least one week from earn- 
 ing full wages at the work at which he was employed. 
 
 (6) When the injury was caused by the personal 
 negligence or willful act of the employer or of some 
 person for whose act or default the employer is re- 
 sponsible, nothing in this act shall affect any civil 
 liability of the employer, but in that case the work- 
 man may, at his option, either claim compensation 
 under this act or take proceedings independently of 
 this act; but the employer shall not be liable to pay 
 compensation for injury to a workman by accident 
 arising out of and in the course of the employment 
 both independently of and also under this act, and 
 shall not be liable to any proceedings independently 
 of this act, except in case of such personal negligence 
 or willful act as aforesaid. 
 
 (c) If it is proved that the injury to a workman is 
 attributable to the serious and willful misconduct of 
 the workman, any compensation claimed in respect of 
 that injury shall, unless the injury results in death or 
 serious and permanent disablement, be disallowed. 
 
 (3) If any question arises in any proceedings under this 
 act as to the liability to pay compensation under this act 
 (including any question as to whether the person injured is 
 a workman to whom this act applies), or as to the amount or 
 duration of compensation under this act, the question, if not 
 settled by agreement, shall, subject to the provisions of the 
 first schedule to this act, be settled by arbitration, in ac- 
 cordance with the second schedule to this act. 
 
 (4) If, within the time hereinafter in this act limited for 
 taking proceedings, an action is brought to recover damages 
 independently of this act for injury caused by any accident 
 and is determined in such action that the injury is one for 
 which the employer is not liable in such action, but that he 
 would have been liable to pay compensation under the pro-
 
 854 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 visions of this act, the action shall be dismissed; but the court 
 in which the action is tried shall, if the plaintiff so choose, 
 proceed to assess such compensation, but may deduct from 
 such compensation all or part of the costs which, in its judg- 
 ment, have been caused by the plaintiff bringing the action 
 instead of proceeding under this act. In any proceeding 
 under this subsection, when the court assesses the compensa- 
 tion it shall give a certificate of the compensation it has 
 awarded and the directions it has given as to the deduction 
 for costs, and such certificate shall have the force and effect 
 of an award under this act. 
 
 (5) Nothing in this act shall affect any proceeding for a 
 fine under the enactments relating to mines, factories, or 
 workshops, or the application of any such fine. 
 
 II 
 
 (1) Proceedings for the recovery under this act of com- 
 pensation for an injury shall not be maintainable unless no- 
 tice of the accident has been given as soon as practicable 
 after the happening thereof and before the workman has 
 voluntarily left the employment in which he was injured, 
 and unless the claim for compensation with respect to such 
 accident has been made within six months from the occur- 
 rence of the accident causing the injury, or, in case of death, 
 within six months from the time of death : 
 Provided always that 
 
 (a) The want of or any defect or inaccuracy in such 
 notice shall not be a bar to the maintenance of such 
 proceedings if it is found in the proceedings for set- 
 tling the claim that the employer is not, or would not, 
 if a notice or an amended notice were then given and 
 the hearing postponed, be prejudiced in his defense by 
 the want, defect, or inaccuracy, or that such want, 
 defect, or inaccuracy was occasioned by mistake, ab- 
 sence from the United Kingdom, or other reasonable 
 cause; and
 
 TEXTS OF COMPENSATION ACTS 855 
 
 British 
 
 (6) The failure to make a claim within the period 
 above specified shall not be a bar to the maintenance 
 of such proceedings if it is found that the failure 
 was occasioned by mistake, absence from the United 
 Kingdom, or other reasonable cause. 
 
 (2) Notice in respect of an injury under this act shall give 
 the name and address of the person injured, and shall state 
 in ordinary language, the cause of the injury and the date 
 at which the accident happened, and shall be served on the 
 employer, or, if there is more than one employer, upon one 
 of such employers. 
 
 (3) The notice may be served by delivering the same at, 
 or sending it by post in a registered letter addressed to, the 
 residence or place of business of the person on whom it is to 
 be served. 
 
 (4) Where the employer is a body of persons, corporate 
 or unincorporate, the notice may also be served by deliver- 
 ing the same at, or by sending it by post in a registered letter 
 addressed to, the employer at the office, or, if there be more 
 than one office, any one of the offices of such body. 
 
 Ill 
 
 (1) If the Registrar of Friendly Societies, after taking 
 steps to ascertain the views of the employer and workman, 
 certifies that any scheme of compensation, benefit, or in- 
 surance for the workman of an employer, in any employ- 
 ment, whether or not such scheme includes other employers 
 and their workmen, provides scales of compensation not less 
 favorable to the workmen and their dependents than the 
 corresponding scales contained in this act, and that, where 
 the scheme provides for contributions by the workmen, the 
 scheme confers benefits at least equivalent to those con- 
 tributions, in addition to the benefits to which the workmen 
 would have been entitled under this act, and that a majority 
 (to be ascertained by ballot) of the workmen to whom the 
 scheme is applicable are in favor of such scheme, the em-
 
 856 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 ployer may, whilst the certificate is in force, contract with 
 any of his workmen that the provisions of the scheme shall 
 be substituted for the provisions of this act, and thereupon 
 the employer shall be liable only in accordance with the 
 scheme, but, save as aforesaid, this act shall apply notwith- 
 standing any contract to the contrary made after the com- 
 mencement of this act. 
 
 (2) The registrar may give a certificate to expire at the 
 end of a limited period of not less than five years, and may 
 from time to time renew with or without modifications such 
 a certificate to expire at the end of the period for which it is 
 renewed. 
 
 (3) No scheme shall be certified which contains an obliga- 
 tion upon the workmen to join the scheme as a condition of 
 their hiring, or which does not contain provisions enabling a 
 workman to withdraw from the scheme. 
 
 (4) If complaint is made to the Registrar of Friendly 
 Societies by or on behalf of the workmen of any employer 
 that the benefits conferred by any scheme no longer conform 
 to the conditions stated in subsection (1) of this section, or 
 that the provisions of such scheme are being violated, or that 
 the scheme is not being fairly administered, or that satis- 
 factory reasons exist for revoking the certificate, the registrar 
 shall examine into the complaint, and, if satisfied that good 
 cause exists for such complaint, shall, unless the cause of 
 complaint is removed, revoke the certificate. 
 
 (5) When a certificate is revoked or expires, any moneys 
 or securities held for the purpose of the scheme shall, after 
 due provision has been made to discharge the liabilities al- 
 ready accrued, be distributed as may be arranged between 
 the employer and workmen, or as may be determined by the 
 Registrar of Friendly Societies in the event of a difference of 
 opinion. 
 
 (6) Whenever a scheme has been certified as aforesaid, it 
 shall be the duty of the employer to answer all such inquiries
 
 TEXTS OF COMPENSATION ACTS 857 
 
 British 
 
 and to furnish all such accounts in regard to the scheme as 
 may be made or required by the Registrar of Friendly So- 
 cieties. 
 
 (7) The Chief Registrar of Friendly Societies shall include 
 in his annual report the particulars of the proceedings of the 
 registrar under this act. 
 
 (8) The Chief Registrar of Friendly Societies may make 
 regulations for the purpose of carrying this section into effect. 
 
 IV 
 
 (1) Where any person (in this section referred to as the 
 principal) in the course of or for the purposes of his trade or 
 business, contracts with any other person (in this section 
 referred to as the contractor) for the execution by or under 
 the contractor of the whole or any part of any work under- 
 taken by the principal, the principal shall be liable to pay to 
 any workman employed in the execution of the work any 
 compensation under this act which he would have been liable 
 to pay if that workman had been immediately employed by 
 him; and where compensation is claimed from or proceed- 
 ings are taken against the principal, then, in the application 
 of this act references to the principal shall be substituted for 
 the references to the employer, except that the amount of 
 compensation shall be calculated with reference to the earn- 
 ings of the workman under the employer by whom he is 
 immediately employed: 
 
 Provided, that, where the contract relates to threshing, 
 plowing, or other agricultural work, and the contractor pro- 
 vides and uses machinery driven by mechanical power for the 
 purpose of such work, he and he alone shall be liable under 
 this act to pay compensation to any workman employed by 
 him on such work. 
 
 (2) Where the principal is liable to pay compensation 
 under this section, he shall be entitled to be indemnified by 
 any person who would have been liable to pay compensation
 
 858 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 to the workman independently of this section, and all ques- 
 tions as to the right and amount of any such indemnity shall 
 in default of agreement be settled by arbitration under this 
 act. 
 
 (3) Nothing in this section shall be construed as prevent- 
 ing a workman recovering compensation under this act from 
 the contractor instead of the principal. 
 
 (4) This section shall not apply in any case where the acci- 
 dent occurred elsewhere than on, or in, or about premises on 
 which the principal has undertaken to execute the work or 
 which are otherwise under his control or management. 
 
 V 
 
 (1) Where any employer has entered into a contract with 
 any insurers in respect of any liability under this act to 
 any workman, then, in the event of the employer becoming 
 bankrupt, or making a composition or arrangement with his 
 creditors, or if the employer is a company in the event of the 
 company having commenced to be wound up, the rights of 
 the employer against the insurers as respects that liability 
 shall, notwithstanding anything in the enactments relating 
 to bankruptcy and the winding up of companies, be trans- 
 ferred to and vest in the workmen, and upon any such trans- 
 fers the insurer shall have the same rights and remedies and 
 be subject to the same liabilities as if they were the em- 
 ployer, so however that the insurers shall not be under any 
 greater liability to the workman than they would have been 
 under to the employer. 
 
 (2) If the liability of the insurers to the workman is less 
 than the liability of the employer to the workman, the work- 
 man may prove for the balance in the bankruptcy or liquida- 
 tion. 
 
 (3) There shall be included among the debts which under 
 section one of the Preferential Payments in Bankruptcy 
 Act, 1888, and section four of the Preferential Payments in 
 Bankruptcy (Ireland) Act, 1889, are in the distribution of
 
 TEXTS OF COMPENSATION ACTS 859 
 
 British 
 
 the property of a bankrupt and in the distribution of the 
 assets of a company being wound up to be paid in priority to 
 all other debts, the amount, not exceeding in any individual 
 case one hundred pounds, due in respect of any compensa- 
 tion the liability wherefor accrued before the date of the 
 receiving order or the date of the commencement of the 
 winding up, and those acts and the Preferential Payments in 
 Bankruptcy Amendment Act, 1897, shall have effect ac- 
 cordingly. Where the compensation is a weekly payment, 
 the amount due in respect thereof shall, for the purposes of 
 this provision be taken to be the amount of the lump sum 
 for which the weekly payment could, if redeemable, be re- 
 deemed if the employer made an application for that purpose 
 under the first schedule to this act. 
 
 (4) In the case of the winding up of a company within the 
 meaning of the Stannaries Act, 1887, such an amount as 
 aforesaid, if the compensation is payable to a miner or the 
 dependents of a miner, shall have a like priority as is con- 
 ferred on wages of miners by section nine of that act, and that 
 section shall have effect accordingly. 
 
 (5) The provisions of this section with respect to prefer- 
 ences and priorities shall not apply where the bankrupt or 
 the company being wound up has entered into such a con- 
 tract with insurers as aforesaid. 
 
 (6) This section shall not apply where a company is 
 wound up voluntarily merely for the purposes of reconstruc- 
 tion or of amalgamation with another company. 
 
 VI 
 
 Where the injury for which compensation is payable under 
 this act was caused under circumstances creating a legal lia- 
 bility in some person other than the employer to pay dam- 
 ages in respect thereof: 
 
 (1) The workman may take proceedings both 
 against that person to recover damages and against 
 any person liable to pay compensation under this act
 
 8GO BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 for such compensation, but shall not be entitled to 
 recover both damages and compensation; and 
 
 (2) If the workman has recovered compensation 
 under this act the person by whom the compensation 
 was paid (and any person who has been called on to 
 pay an indemnity under the section of this act relat- 
 ing to subcontracting) shall be entitled to be in- 
 demnified by the person so liable to pay damages as 
 aforesaid, and all questions as to the right to and 
 amount of any such indemnity shall, in default of 
 agreement, be settled by action, or, by consent of the 
 parties, by arbitration under this act. 
 
 VII 
 
 (1) This act shall apply to masters, seamen, and appren- 
 tices to the sea service and apprentices in the sea fishing 
 service, provided that such persons are workmen within the 
 meaning of this act, and are members of the crew of any ship 
 registered in the United Kingdom, or of any other British 
 ship or vessel of which the owner, or (if there is more than 
 one owner) the managing owner, or manager resides or has 
 his principal place of business in the United Kingdom, sub- 
 ject to the following modifications: 
 
 (a) The notice of accident and the claim for com- 
 pensation may, except where the person injured is the 
 master, be served on the master of the ship as if he 
 were the employer, but where the accident happened 
 and the incapacity commenced on board the ship it 
 shall not be necessary to give any notice of the 
 accident; 
 
 (6) In the case of the death of the master, seaman, 
 or apprentice, the claim for compensation shall be 
 made within six months after news of the death has 
 been received by the claimant; 
 
 (c) Where an injured master, seaman, or apprentice 
 is discharged or left behind in a British possession, or
 
 TEXTS OF COMPENSATION ACTS 861 
 
 British 
 
 in a foreign country, depositions respecting the cir- 
 cumstances and nature of the injury may be taken by 
 any judge or magistrate in the British possession, and 
 by any British consular officer in the foreign country, 
 and if so taken shall be transmitted by the person by 
 whom they are taken to the Board of Trade, and such 
 depositions or certified copies thereof shall in any 
 proceedings for enforcing the claim be admissible in 
 evidence as provided by sections six hundred and 
 ninety-one and six hundred and ninety-five of the 
 Merchant Shipping Act, 1894, and those sections shall 
 apply accordingly; 
 
 (d) In the case of the death of a master, seaman, or 
 apprentice, leaving no dependents, no compensation 
 shall be payable, if the owner of the ship is under the 
 Merchant Shipping Act, 1894, liable to pay the ex- 
 penses of the burial; 
 
 (e) The weekly payment shall not be payable in 
 respect of the period during which the owner of the 
 ship is, under the Merchant Shipping Act, 1894, as 
 amended by any subsequent enactment, or other- 
 wise, liable to defray the expenses of maintenance of 
 the injured master, seaman, or apprentice; 
 
 (/) Any sum payable by the way of compensation 
 by the owner of a ship under this act shall be paid in 
 full notwithstanding anything in section five hundred 
 and three of the Merchant Shipping Act, 1894 (which 
 relates to the limitation of a shipowner's liability in 
 certain cases of loss of life, injury or damage), but the 
 limitation on the owner's liability imposed by that 
 section shall apply to the amount recoverable by way 
 of indemnity under the section of this act relating to 
 remedies both against employer and stranger as if the 
 indemnity were damages for the loss of life or per- 
 sonal injury;
 
 862 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 (</) Subsections (2) and (3) of section one hundred 
 and seventy-four of the Merchant Shipping Act, 1894 
 (which relates to the recovery of wages of seamen lost 
 with their ship), shall apply as respects proceedings 
 for the recovery of compensation by dependents of 
 masters, seamen and apprentices lost with their ship 
 as they apply with respect to proceedings for the re- 
 covery of wages due to seamen and apprentices; and 
 proceedings for the recovery of compensation shall in 
 such a case be maintainable if the claim is made within 
 eighteen months of the date at which the ship is 
 deemed to have been lost with all hands; 
 
 (2) This act shall not apply to such members of the crew 
 of a fishing vessel as are remunerated by shares in the profits 
 or the gross earnings of the working of such vessel. 
 
 (3) This section shall extend to pilots to whom Part X of 
 the Merchant Shipping Act, 1894, applies, as if a pilot when 
 employed on any such ship as aforesaid were a seaman and 
 a member of the crew. 
 
 VIII 
 
 (1) Where 
 
 (1) The certifying surgeon appointed under the 
 Factory and Workshop Act, 1901, for the district in 
 which a workman is employed certifies that the work- 
 man is suffering from a disease mentioned in the third 
 schedule to this act, and is thereby disabled from 
 earning full wages at the work at which he was em- 
 ployed; or 
 
 (2) A workman is, in pursuance of any special rules 
 or regulations made under the Factory and Workshop 
 Act, 1901, suspended from his usual employment on 
 account of having contracted any such disease; or 
 
 (3) The death of a workman is caused by any such 
 disease and the disease is due to the nature of any
 
 TEXTS OF COMPENSATION ACTS 863 
 
 British 
 
 employment in which the workman was employed at 
 any time within the twelve months previous to the 
 date of the disablement or suspension, whether under 
 one or more employers; he or his dependents shall be 
 entitled to compensation under this act as if the 
 disease or such suspension as aforesaid were a per- 
 sonal injury by accident arising out of and in the 
 course of that employment, subject to the following 
 modifications : 
 
 (a) The disablement or suspension shall be treated 
 as the happening of the accident; 
 
 (6) If it be proved that the workman has at the 
 time of entering the employment willfully and falsely 
 represented himself in writing as not having previously 
 suffered from the disease, compensation shall not he 
 payable; 
 
 (c) The compensation shall be recoverable from the 
 employer who last employed the workman during the 
 last twelve months in the employment to the nature 
 of which the disease was due; 
 Provided that 
 
 (i) The workman or his dependents if so required 
 shall furnish that employer with such information as 
 to the names and addresses of all the other employers 
 who employed him in the employment during the said 
 twelve months as he or they may possess, and, if such 
 information is not furnished, or is not sufficient to 
 enable that employer to take proceedings under the 
 next following proviso, that employer upon proving 
 that the disease was not contracted whilst the work- 
 man was in his employment shall not be liable to pay 
 compensation; and 
 
 (ii) If that employer alleges that the disease was 
 in fact contracted whilst the workman was in the 
 employment of some other employer, and not whilst
 
 864 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 in his employment, he may join such other employer 
 as a party to the arbitration, and if the allegation is 
 proved that other employer shall be the employer 
 from whom the compensation is to be recoverable; and 
 (iii) If the disease is of such a nature as to be con- 
 tracted by a gradual process, any other employers 
 who during the said twelve months employed the 
 workman in the employment to the nature of which 
 the disease was due shall be liable to make to the em- 
 ployer from whom compensation is recoverable such 
 contributions as, in default of agreement, may be 
 determined in the arbitration under this act for set- 
 tling the amount of the compensation; 
 
 (d) The amount of the compensation shall be cal- 
 culated with reference to the earnings of the workman 
 under the employer from whom the compensation is 
 recoverable; 
 
 (e) The employer to whom notice of the death, dis- 
 ablement, or suspension is to be given shall be the 
 employer who last employed the workman during the 
 said twelve months in the employment to the nature 
 of which the disease was due, and the notice may be 
 given notwithstanding that the workman has vol- 
 untarily left his employment. 
 
 (/) If an employer or a workman is agreed by the 
 action of a certifying or other surgeon in giving or 
 refusing to give a certificate of disablement or in sus- 
 pending or refusing to suspend a workman for the 
 purposes of this section, the matter shall in accord- 
 ance with regulations made by the Secretary of State 
 be referred to a medical referee, whose decision shall 
 be final. 
 
 (2) If the workman at or immediately before the date of 
 the disablement or suspension was employed in any process 
 mentioned in the second column of the third schedule to this
 
 TEXTS OF COMPENSATION ACTS 865 
 
 British 
 
 act, and the disease contracted is the disease in the first 
 column of that schedule set opposite the description of the 
 process, the disease, except where the certifying surgeon 
 certifies that in his opinion the disease was not due to the 
 nature of the employment, shall be deemed to have been due 
 to the nature of that employment, unless the employer 
 proves the contrary. 
 
 (3) The Secretary of State may make rules regulating the 
 duties and fees of certifying and other surgeons (including 
 dentists) under this section. 
 
 (4) For the purposes of this section the date of disable- 
 ment shall be such date as the certifying surgeon certifies as 
 the date on which the disablement commenced, or, if he is 
 unable to certify such a date, the date on which the certifi- 
 cate is given. Provided that 
 
 (a) Where the medical referee allows an appeal 
 against a refusal by a certifying surgeon to give a cer- 
 tificate of disablement, the date of disablement shall 
 be such date as the medical referee may determine; 
 
 (&) Where a workman dies without having ob- 
 tained a certificate of disablement, or is at the time 
 of death not in receipt of a weekly payment on ac- 
 count of disablement, it shall be the date of death. 
 
 (5) In such cases, and subject to such conditions as the 
 Secretary of State may direct, a medical practitioner ap- 
 pointed by the Secretary of State for the purpose shall have 
 the power and duties of a certifying surgeon under this sec- 
 tion, and this section shall be construed accordingly. 
 
 (6) The Secretary of State may make orders for extending 
 the provisions of this section to other diseases and other 
 processes, and to injuries due to the nature of any employ- 
 ment specified in the order not being injuries by accident, 
 either without modification or subject to such modification 
 as may be contained in the order. 
 
 (7) Where after inquiry held on the application of any 
 
 55
 
 866 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 employer or workman engaged in any industry to which this 
 section applies, it appears that a mutual trade insurance 
 company or society for insuring against the risks under this 
 section has been established for the industry, and that a 
 majority of the employers engaged in that industry are in- 
 sured against such risks in the company or society and that 
 the company or society consents, the Secretary of State may, 
 by provisional order, require all employers in that industry 
 to insure in the company or society upon such conditions and 
 subject to such exceptions as may be set forth in the order. 
 Where such a company or society has been established, but 
 is confined to employers in any particular locality or of any 
 particular class, the Secretary of State may for the purposes 
 of this provision treat the industry, as carried on by em- 
 ployers in that locality or of that class, as a separate in- 
 dustry. 
 
 (8) A provisional order made under this section shall be of 
 no force whatever unless and until it is confirmed by Parlia- 
 ment, and if, while the bill confirming any such order is 
 pending in either House of Parliament, a petition is pre- 
 sented against the order, the bill may be referred to a select 
 committee, and the petitioner shall be allowed to appear and 
 oppose as in the case of private bills, and any act confirming 
 any provisional order under this section may be repealed, 
 altered, or amended by a provisional order made and con- 
 firmed in like manner. 
 
 (9) Any expenses incurred by the Secretary of State in 
 respect of any such order, provisional order, or confirming 
 bill shall be defrayed out of moneys provided by Parliament. 
 
 (10) Nothing in this section shall affect the rights of a 
 workman to recover compensation in respect of a disease to 
 which this section does not apply, if the disease is a personal 
 injury by accident within the meaning of this act. 
 
 IX 
 
 (1) This act shall not apply to persons in the naval or
 
 TEXTS OF COMPENSATION ACTS 867 
 
 British 
 
 military service of the Crown, but otherwise shall apply to 
 workmen employed by or under the Crown to whom this 
 act would apply if the employer were a private person: 
 
 Provided that in the case of a person employed in the 
 private service of the Crown, the head of that department of 
 the royal household in which he was employed at the time 
 of the accident shall be deemed to be his employer. 
 
 (2) The treasury may, by a warrant laid before Parlia- 
 ment, modify for the purposes of this act their warrant made 
 under section one of the Superannuation Act, 1887, and not- 
 withstanding anything in that act, or any such warrant, may 
 frame schemes with a view to their being certified by the 
 Registrar of Friendly Societies under this act. 
 
 X 
 
 (1) The Secretary of State may appoint such legally 
 qualified medical practitioners to be medical referees for the 
 purposes of this act as he may, with the sanction of the 
 treasury, determine, and remuneration of, and other ex- 
 penses incurred by, medical referees under this act shall, 
 subject to regulations made by the treasury, be paid out of 
 moneys provided by Parliament. 
 
 Where a medical referee has been employed as a medical 
 practitioner in connection with any case by or on behalf of 
 an employer or workman or by any insurers interested, he 
 shall not act as medical referee in that case. 
 
 (2) The remuneration of an arbitrator appointed by a 
 judge of the county courts under the second schedule to this 
 act shall be paid out of moneys provided by Parliament in 
 accordance with regulations made by the treasury. 
 
 XI 
 
 (1) If it is alleged that the owners of any ship are liable 
 as such owners to pay compensation under this act, and at 
 any time that ship is found in any port or river of England 
 or Ireland, or within three miles of the coast thereof, a judge
 
 868 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 of any court of record in England or Ireland may, upon its 
 being shown to him by any person applying in accordance 
 with the rules of the court that the owners are probably 
 liable as such to pay such compensation, and that none of 
 the owners reside in the United Kingdom, issue an order 
 directed to any officer of customs or other officer named by 
 the judge requiring him to detain the ship until such time 
 as the owners, agent, master, or consignee thereof have paid 
 such compensation, or have given security, to be approved 
 by the judge, to abide the event of any proceedings that may 
 be instituted to recover such compensation and to pay such 
 compensation and costs as may be awarded thereon; and 
 any officer of customs or other officer to whom the order is 
 directed shall detain the ship accordingly. 
 
 (2) In any legal proceeding to recover such compensation, 
 the person giving security shall be made the defendant, and 
 the production of the order of the judge, made in relation 
 to the security, shall be conclusive evidence of the liability 
 of the defendant to the proceeding. 
 
 (3) Section six hundred and ninety-two of the Merchant 
 Shipping Act, 1894, shall apply to the detention of a ship 
 under this act as it applies to the detention of a ship under 
 that act, and, if the owner of a ship is a corporation, it shall 
 for the purposes of this section be deemed to reside in the 
 United Kingdom if it has an office in the United Kingdom 
 at which service of writs can be effected. 
 
 XII 
 
 (1) Every employer in any industry to which the Secre- 
 tary of State may direct that this section shall apply shall, 
 on or before such day in every year as the Secretary of State 
 may direct, send to the Secretary of State a correct return 
 specifying the number of injuries in respect of which com- 
 pensation has been paid by him under this act during the 
 previous year, and the amount of such compensation, to- 
 gether with such other particulars as to the compensation as
 
 TEXTS OF COMPENSATION ACTS 869 
 
 British 
 
 the Secretary of State may direct, and in default of com- 
 plying with this section shall be liable on conviction under 
 the Summary Jurisdiction Acts to a fine not exceeding five 
 pounds. 
 
 (2) Any regulations made by the Secretary of State con- 
 taining such directions as aforesaid shall be laid before both 
 Houses of Parliament as soon as may be after they are made. 
 
 XIII 
 
 In this act, unless the context otherwise requires, "Em- 
 ployer" includes any body of persons corporate or incorpo- 
 rate and the legal personal representative of a deceased 
 employer, and where the services of a workman are tem- 
 porarily lent or let on hire to another person with whom 
 the workman has entered into a contract of service or ap- 
 prenticeship, the latter shall, for the purposes of this act, be 
 deemed to continue to be the employer of the workman 
 whilst he is working for that other person; 
 
 "Workman" does not include any person employed other- 
 wise than by way of manual labor whose remuneration ex- 
 ceeds two hundred and fifty pounds a year, or a person whose 
 employment is of a casual nature and who is employed other- 
 wise than for the purposes of the employer's trade or business, 
 or a member of a police force, or an out-worker, or a member 
 of the employer's family dwelling in his house, but, save as 
 aforesaid, means any person who has entered into or works 
 under a contract of service or apprenticeship with an em- 
 ployer, whether by way of manual labor, clerical work, or 
 otherwise, and whether the contract is expressed or implied, 
 or oral or in writing; 
 
 Any reference to a workman who has been injured shall, 
 where the workman is dead, include a reference to his legal 
 personal representative or to his dependents or other per- 
 sons to whom or for whose benefit compensation is payable; 
 
 "Dependents" means such of the members of the work- 
 man's family as were wholly or in part dependent upon the
 
 870 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 British 
 
 earnings of the workman at the time of his death, or would 
 but for the incapacity due to the accident have been so de- 
 pendent, and where the workman, being the parent or grand- 
 parent of an illegitimate child, leaves such a child so de- 
 pendent upon his earnings or being an illegitimate child, 
 leaves a parent or grandparent so dependent upon his earn- 
 ings, shall include such an illegitimate child and parent or 
 grandparent respectively. 
 
 "Members of a family" means wife or husband, father, 
 mother, grandfather, grandmother, stepfather, stepmother, 
 son, daughter, grandson, granddaughter, stepson, stepdaugh- 
 ter, brother, sister, half-brother, half-sister; 
 
 "Ship," "vessel," "seaman," and "port" have the same 
 meaning as in the Merchant Shipping Act, 1894; 
 
 "Manager," in relation to a ship means the ship's husband 
 or other person to whom the management of the ship is en- 
 trusted by or on behalf of the owner; 
 
 "Police force" means a police force to which the Police 
 Act, 1890, or the Police (Scotland) Act, 1890, The City of 
 London Police Force, The Royal Irish Constabulary, and 
 The Dublin Metropolitan Police Force; 
 
 " Outworker" means a person to whom articles or materials 
 are given out to be made up, cleaned, washed, altered, orna- 
 mented, finished, or repaired, or adapted for sale, in his own 
 home or on other premises not under the control or manage- 
 ment of the person who gave out the materials or articles. 
 
 The exercise and performance of the powers and duties of 
 a local or other public authority shall, for the purposes of 
 this act be treated as the trade or business of the authority; 
 
 "County Court," "Judge of the county court," "registrar 
 of the county court," "plaintiff," and "rules of court," as 
 respects Scotland, means respectively sheriff court, sheriff, 
 sheriff clerk, pursuer, and act of sederunt. 
 
 XIV 
 
 In Scotland, where a workman raises an action against his
 
 TEXTS OF COMPENSATION ACTS 871 
 
 British 
 
 employer independently of this act in respect of any injury 
 caused by accident arising out of and in the course of the 
 employment, the action, if raised in the sheriff court and con- 
 cluding for damages under the Employers' Liability Act, 
 1880, or alternatively at common law or under the Em- 
 ployers' Liability Act, 1880, shall, notwithstanding anything 
 contained in that act, not be removed under that act or 
 otherwise to the Court of Sessions, nor shall it be appealed 
 to that court otherwise than by appeal on a question of law; 
 and for the purposes of such appeal the provisions of the 
 second schedule to this act in regard to an appeal from the 
 decision of the sheriff on any question of law determined by 
 him as arbitrator under this act shall apply. 
 
 XV 
 
 (1) Any contract (other than a contract substituting the 
 provision of a scheme certified under the Workmen's Com- 
 pensation Act, 1897, for the provisions of that act) existing 
 at the commencement of this act, whereby a workman re- 
 linquishes any right to compensation from the employer for 
 personal injury arising out of and in the course of his employ- 
 ment, shall not, for the purposes of this act, be deemed to 
 continue after the time at which the workman's contract of 
 service would continue if notice of the determination thereof 
 were given at the commencement of this act. 
 
 (2) Every scheme under the Workmen's Compensation 
 Act, 1897, in force at the commencement of this act shall, if 
 re-certified by the Registrar of Friendly Societies, have ef- 
 fect as if it were a scheme under this act. 
 
 (3) The registrar shall re-certify any such scheme if it is 
 proposed to his satisfaction that the scheme conforms, or 
 has been so modified as to conform, with the provisions of 
 this act as to schemes. 
 
 (4) If any such scheme has not been so re-certified before 
 the expiration from the commencement of this act, the 
 certificate shall be revoked.
 
 872 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 XVI 
 
 (1) This act shall come into operation on the first day of 
 July, nineteen hundred and seven, but, except so far as it re- 
 lates to references to medical references, and proceedings 
 consequential thereon, shall not apply in any case where the 
 accident happened before the commencement of this act. 
 
 (2) The Workmen's Compensation Acts, 1897 and 1900, 
 are hereby repealed, but shall continue to apply the cases 
 where the accident happened before the commencement of 
 this act, except to the extent to which this act applies to 
 those cases. 
 
 XVII 
 
 This act may be cited as the Workmen's Compensation 
 Act, 1906. 
 
 CALIFORNIA 
 
 (L. 1911, c. 399) 
 
 An act relating to the liability of employers for injuries or 
 death sustained by their employe's, providing for compen- 
 sation for the accidental injury of employes, establishing 
 an industrial accident board, making an appropriation 
 therefor, defining its powers and providing for a review of 
 its awards. 
 
 [Approved April 8, 191 1] 
 
 The people of the State of California, represented in senate 
 and assembly, do enact as follows: 
 
 ABROGATION OF DEFENSES 
 
 SECTION 1. In any action to recover damages for a per- 
 sonal injury sustained within this State by an employe" while 
 engaged in the line of his duty or the course of his employ- 
 ment as such, or for death resulting from personal injury so 
 sustained, in which recovery is sought upon the ground of
 
 TEXTS OF COMPENSATION ACTS 873 
 
 California 
 
 want of ordinary or reasonable care of the employer, or of 
 any officer, agent or servant of the employer, the fact that 
 such employe may have been guilty of contributory negli- 
 gence shall not bar a recovery therein where his contributory 
 negligence was slight and that of the employer was gross, in 
 comparison, but the damages may be diminished by the 
 jury in proportion to the amount of negligence attributable 
 to such employe, and it shall be conclusively presumed that 
 such employe was not guilty of contributory negligence in 
 any case where the violation of any statute enacted for the 
 safety of employes contributed to such employe's injury; and 
 it shall not be a defense: 
 
 (1) That the employe either expressly or impliedly as- 
 sumed the risk of the hazard complained of. 
 
 (2) That the injury or death was caused in whole or in 
 part by. the want of ordinary or reasonable care of a fellow 
 servant. 
 
 SEC. 2. No contract, rule or regulation, shall exempt the 
 employer from any of the provisions of the preceding section 
 of this act 
 
 LIABILITY FOR COMPENSATION 
 
 SEC. 3. Liability for the compensation hereinafter pro- 
 vided for, in lieu of any other liability whatsoever, shall, 
 without regard to negligence, exist against an employer for 
 any personal injury accidentally sustained by his employes, 
 and for his death if the injury shall approximately cause 
 death, in those cases where the following conditions of com- 
 pensation concur: 
 
 (1) Where, at the time of the accident, both the employer 
 and employe are subject to the provisions of this act accord- 
 ing to the succeeding sections hereof. 
 
 (2) Where, at the time of the accident, the employe" is 
 performing service growing out of and incidental to his em- 
 ployment and is acting within the line of his duty or course 
 of his employment as such.
 
 874 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 (3) Where the injury is approximately caused by accident, 
 either with or without negligence, and is not so caused by the 
 willful misconduct of the employe. 
 
 And where such conditions of compensation exist for any 
 personal injury or death, the right to the recovery of such 
 compensation pursuant to the provisions of this act, and acts 
 amendatory thereof, shall be the exclusive remedy against 
 the employer for such injury or death, except that when the 
 injury was caused by the personal gross negligence or willful 
 personal misconduct of the employer, or by reason of his 
 violation of any statute designed for the protection of em- 
 ployes from bodily injury, the employe" may, at his option, 
 either claim compensation under this act, or maintain an 
 action for damages therefor; in all other cases the liability of 
 the employer shall be the same as if this and the succeeding 
 sections of this act had not been passed, but shall be subject 
 to the provisions of the preceding sections of this act. 
 
 SEC. 4. The following shall constitute employers subject 
 to the provisions of this act within the meaning of the pre- 
 ceding section: 
 
 (1) The State, and each county, city and county, city, 
 town, village and school districts and all public corporations, 
 every person, firm, and private corporation (including any 
 public service corporation) who has any person in service 
 under any contract of hire, express or implied, oral or written, 
 and who, at or prior to the time of the accident to the em- 
 ploye for which compensation under this act may be claimed, 
 shall, in the manner provided in the next section, have 
 elected to become subject to the provisions of this act, and 
 who shall not, at the time of such accident, have withdrawn 
 such election, in the manner provided in the next section. 
 
 SEC. 5. Such election on the part of the employer shall be 
 made by filing with the industrial accident board, herein- 
 after provided for a written statement to the effect that he 
 accepts the provisions of this act, the filing of which state-
 
 TEXTS OF COMPENSATION ACTS 875 
 
 California 
 
 ment shall operate, within the meaning of section three of 
 this act, to subject such employer to the provisions of this 
 act and all acts amendatory thereof for the term of one year 
 from the date of the filing of such statement, and thereafter, 
 without further act on his part, for successive terms of one 
 year each, unless such employer shall, at least sixty days 
 prior to the expiration of such first or any succeeding year, 
 file in the office of said board a notice in writing to the effect 
 that he withdraws his election to be subject to the provisions 
 of the act. 
 
 SEC. 6. The term "employ 6" as used in section three of 
 this act shall be construed to mean: 
 
 (1) Every person in the service of the State, or any 
 county, city and county, city, town, village or school dis- 
 trict therein, and all public corporations, under any appoint- 
 ment or contract of hire, express or implied, oral or written, 
 except any official of the State, or of any county, city and 
 county, city, town, village or school district therein or any 
 public corporation, who shall have been elected or appointed 
 for a regular term of one or more years, or to complete the 
 unexpired portion of any such regular term. 
 
 (2) Every person in the service of another under any con- 
 tract 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 purposes 
 of the next section of this act, shall be considered the same 
 and shall have the same power of contracting as adult em- 
 ployes), but not including any person whose employment is 
 but casual and not in the usual course of the trade, business, 
 profession or occupation of his employer. 
 
 SEC. 7. Any employe as defined in subsection (1) of the 
 preceding section shall be subject to the provisions of this 
 act and of any act amendatory thereof. Any employe" as 
 defined in subsection (2) of the preceding section shall be 
 deemed to have accepted and shall, within the meaning of
 
 876 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 section 3 of this act be subject to the provisions of this act 
 and of any act amendatory thereof, if, at the time of the acci- 
 dent upon which liability is claimed: 
 
 (1) The employer charged with such liability is subject to 
 the provisions of this act, whether the employe has actual 
 notice thereof or not; and 
 
 (2) At the time of entering into his contract of hire, ex- 
 press or implied, with such employer, such employe shall not 
 have given to his employer notice in writing that he elects 
 not to be subject to the provisions of this act, or, in the event 
 that such contract of hire was made in advance of such em- 
 ployer becoming subject to the provisions of the act, such 
 employe shall, without giving such notice, remain in the 
 service of such employer for thirty days after the employer 
 has filed with said board an election to be subject to the 
 terms of this act. 
 
 SCALE OF COMPENSATION 
 
 SEC. 8. Where liability for compensation under this act 
 exists the same shall be as provided in the following schedule : 
 
 (1) Such medical and surgical treatment, medicines, medi- 
 cal and surgical supplies, crutches and apparatus, as may be 
 reasonably required at the time of the injury and thereafter 
 during the disability, but not exceeding ninety days, to cure 
 and relieve from the effects of the injury, the same to be pro- 
 vided by the employer, and in case of his neglect or refusal 
 seasonably to do so, the employer to be liable for the reason- 
 able expense incurred by or on behalf of the employe" in pro- 
 viding the same; provided, however, that the total liability 
 under this subdivision shall not exceed the sum of $100.00. 
 
 (2) If the accident causes disability, an indemnity which 
 shall be payable as wages on the eighth day after the injured 
 employe leaves work as the result of the injury, and weekly 
 thereafter, which weekly indemnity shall be as follows: 
 
 (a) If the accident causes total disability, sixty-five per
 
 TEXTS OF COMPENSATION ACTS 877 
 
 California 
 
 cent of the average weekly earnings during the period of 
 such total disability; provided, that if the disability is such 
 as not only to render the injured employe entirely incapable 
 of work, but also so helpless as to require the assistance of a 
 nurse, the weekly indemnity during the period of such as- 
 sistance shall be increased to one hundred per cent of the 
 average weekly earnings. 
 
 (6) If the accident causes partial disability, sixty-five per 
 cent of the weekly loss in wages during the period of such 
 partial disability. 
 
 (c) If the disability caused by the accident is at times total 
 and at times partial, the weekly indemnity during the periods 
 of each such total or partial disability shall be in accordance 
 with said subsections (a) and (6), respectively. 
 
 (d) Said subsections (a), (6) and (c) shall be subject to the 
 following limitations: 
 
 Aggregate disability indemnity for a single injury shall 
 not exceed three times the average annual earnings of the 
 employe. 
 
 If the period of disability does not last more than one 
 week from the day the employe leaves work as the result of 
 the accident no indemnity whatever shall be recoverable. 
 
 If the period of disability lasts more than one week from 
 the day the employe leaves work as the result of the acci- 
 dent, no indemnity shall be recoverable for the first week of 
 the period of such disability. 
 
 The aggregate disability period shall not, in any event 
 extend beyond fifteen years from the date of the accident. 
 
 (3) The death of the injured employe shall not affect the 
 obligation of the employer under subsections (1) and (2) of 
 this section, so far as his liability shall have accrued and 
 become payable at the time of the death, but the death shall 
 be deemed the termination of disability, and the employer 
 shall thereupon be liable for the following death benefits in 
 lieu of any further disability benefits, provided that such
 
 878 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 death was approximately caused by the accident causing 
 such disability: 
 
 (a) In case the deceased employe" leaves a person or per- 
 sons wholly dependent upon him for support, the death 
 benefit shall be a sum sufficient when added to the benefits 
 which shall, at the time of death, have accrued and become 
 payable under the provisions of subsection (2) of this sec- 
 tion to make the total compensation for the injury and death 
 (exclusive of the benefit provided for in subsection (1), equal 
 to three times his annual average earnings, not less than 
 $1,000 nor more than $5,000, the same to be payable, un- 
 less and until the industrial accident board shall otherwise 
 direct, in weekly installments corresponding in amount to 
 the weekly earnings of the employe". 
 
 (6) In case the deceased employe leaves no one wholly 
 dependent on him for support, but one or more persons par- 
 tially dependent therefor, the death benefit shall be such 
 percentage of three times such annual earnings of the em- 
 ploye as the annual amount devoted by the deceased to 
 the support of the person or persons so partially dependent 
 upon him for support bears to such average earnings, the 
 same to be payable, unless and until the industrial accident 
 board shall otherwise direct, in weekly installments, cor- 
 responding to the weekly earnings of the employes ; provided, 
 that the total compensation for the injury and death (ex- 
 clusive of the benefit provided for in said subsection (1) shall 
 not exceed three times such average annual earnings. 
 
 (c) In the event that the accident shall have approxi- 
 mately caused permanent disability, either total or partial, 
 and the employe" shall die within fifteen years after the date 
 of the accident, liability for the death benefits provided for 
 in said subsections (a) and (6) respectively shall exist only 
 where the accident was the approximate cause of death 
 within said period of fifteen years. 
 
 (d) If the deceased employe" leaves no person dependent
 
 TEXTS OF COMPENSATION ACTS 879 
 
 California 
 
 upon him for support, and the accident approximately 
 causes death, the death benefit shall consist of the reasonable 
 expenses of his burial not exceeding $100. 
 
 METHOD OF COMPUTATION 
 
 SEC. 9. (1) The weekly earning referred to in section (8) 
 shall be one fifty-second of the average annual earnings of 
 the employe; average annual earnings shall not be taken at 
 less than $333.33, nor more than $1,666.66, and between 
 said limits shall be arrived at as follows : 
 
 (a) If the injured employe has worked in such employ- 
 ment, whether for the same employer or not, during sub- 
 stantially the whole of the year immediately preceding his 
 injury, his average annual earnings shall consist of three 
 hundred times the average daily wage or salary which he 
 has earned as such employe" during the days when so em- 
 ployed. 
 
 (6) If the injured employe" has not so worked in such 
 employment during substantially the whole of such immedi- 
 ately preceding year, his average annual earnings shall con- 
 sist of three hundred times the average daily wage or salary 
 which an employe" of the same class working substantially 
 the whole of such immediately preceding year in the same 
 or a similar employment in the same or a neighboring place 
 shall have earned during the days when so employed. 
 
 (c) In cases where the foregoing methods of arriving at 
 the average annual earnings of the injured employe" cannot 
 reasonably and fairly be applied, such annual earnings shall 
 be taken at such sum as having regard to the previous earn- 
 ings of the injured employ 6, and of other employe's of the 
 same or most similar class, working in the same or most 
 similar employment in the same or neighboring locality, shall 
 reasonably represent the average earning capacity of the 
 injured employe" at the time of the injury in the employment 
 in which he was working at such time.
 
 880 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 (d) The fact that an employe 1 has suffered a previous dis- 
 ability, or received compensation therefor, shall not preclude 
 him from compensation for a later injury, or for death result- 
 ing therefrom, but in determining compensation for the 
 later injury, or death resulting therefrom, his average annual 
 earnings shall be such sum as will reasonably represent his 
 annual earning capacity at the time of the later injury, and 
 shall be arrived at according to the previous provisions of 
 this section. 
 
 (2) The weekly loss in wages referred to in section 8, shall 
 consist of the difference between the average weekly earn- 
 ings of the injured employe, computed according to the 
 provisions of this section, and the weekly amount which the 
 injured employe, in the exercise of reasonable diligence, will 
 probably be able to earn, the same to be fixed as of the time 
 of the accident, but to be determined in view of the nature 
 and extent of the injury. 
 
 (3) The following shall be conclusively presumed to be 
 solely and wholly dependent for support upon a deceased 
 employe" : 
 
 (a) A wife upon a husband. 
 
 (6) A husband upon a wife upon whose earnings he is 
 partially or wholly dependent at the time of her death. 
 
 (c) A child or children under the age of eighteen years (or 
 over said age, but physically or mentally incapacitated from 
 earning), upon the parent with whom he or they are living 
 at the time of the death of such parent, there being no sur- 
 viving dependent parent. In case there is more than one 
 child thus dependent, the death benefit shall be divided 
 equally among them. In all other cases questions of entire 
 or partial dependency shall be determined in accordance 
 with the fact, as the fact may be at the time of the death of 
 the employe", and in such other cases if there is more than 
 one person wholly dependent, the death benefit shall be di- 
 vided equally among them and persons partially dependent,
 
 TEXTS OF COMPENSATION ACTS 881 
 
 California 
 
 if any, shall receive no part thereof, and if there is more than 
 one person partially dependent, the death benefit shall be 
 divided among them according to the relative extent of their 
 dependency. 
 
 (4) Questions as to who constitute dependents and the 
 extent of their dependency shall be determined as of the date 
 of the death of the employe, and their right to any death 
 benefit shall become fixed as of such time, irrespective of 
 any subsequent change in conditions, and the death benefit 
 shall be directly recoverable by and payable to the dependent 
 or dependents entitled thereto or their legal guardians or 
 trustees. 
 
 NOTICE OF INJURY 
 
 SEC. 10. No claim to recover compensation under this act 
 shall be maintained unless within thirty days after the oc- 
 currence of the accident which is claimed to have caused the 
 injury or death, notice in writing, stating the name and the 
 address of the person injured, the time and the place where 
 the accident occurred, and the nature of the injury, and 
 signed by the person injured or some one in his behalf, or in 
 case of his death, by a dependent or some one in his behalf, 
 shall be served upon the employer by delivering to and leav- 
 ing with him a copy of such notice or by mailing to him by 
 registered mail a copy thereof in a sealed and posted envelope 
 addressed to him at his last known place of business or resi- 
 dence. Such mailing .shall constitute complete service. Pro- 
 vided, however, that any payment of compensation under 
 this act, in whole or in part, made by the employer before the 
 expiration of said thirty days shall be equivalent to the notice 
 herein required, and provided further, that the failure to give 
 any such notice, or any defect or inaccuracy therein, shall 
 not be a bar to recovery under this act if it is found as a fact 
 in the proceedings for collections of the claim that there was 
 no intention to mislead the employer, and that he was not in 
 
 56
 
 882 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 fact misled thereby, and provided further that if no such 
 notice is given and no payment of compensation made, 
 within one year from the date of the accident, the right to 
 compensation therefor shall be wholly barred. 
 
 EXAMINATION BY PHYSICIAN 
 
 SEC. 11. Wherever in case of injury the right to compensa- 
 tion under this act would exist in favor of any employe, he 
 shall, upon the written request of his employer, submit from 
 time to time to examination by a regular practicing physician, 
 who shall be provided and paid for by the employer, and shall 
 likewise submit to examination from time to time by any 
 regular physician selected by said Industrial Accident Board, 
 or any member or examiner thereof. The employe shall be 
 entitled to have a physician provided and paid for by himself 
 present at any such examination. So long as the employe, 
 after such written request of the employer, shall refuse to 
 submit to such examination, or shall in any way obstruct the 
 same, his right to begin or maintain any proceeding for the 
 collection of compensation shall be suspended, and if he shall 
 refuse to submit to such examination after direction by the 
 board, or any member or examiner thereof, or shall in any 
 way obstruct the same, his right to the weekly indemnity 
 which shall accrue and become payable during the period of 
 such refusal or obstruction, shall be barred. Any physician 
 who shall make or be present at any such examination may 
 be required to testify as to the results thereof. 
 
 INDUSTRIAL ACCIDENT BOARD 
 
 SEC. 12. Any dispute or controversy concerning compen- 
 sation under this act, including any in which the State may 
 be a party, shall be submitted to a board consisting of three 
 members, which shall be known as the industrial accident 
 board. Within thirty days before this act shall take effect,
 
 TEXTS OF COMPENSATION ACTS 883 
 
 California 
 
 the governor, by and with the advice and consent of the 
 senate, shall appoint a member who shall serve two years, 
 and another who shall serve three years, and another who 
 shall serve four years. Thereafter such three members shall 
 be appointed and confirmed for terms of four years each. 
 Vacancies shall be filled in the same manner for the unex- 
 pired term. Each member of the board, before entering upon 
 the duties of his office, shall take the oath prescribed by the 
 constitution. A majority of the board shall constitute a 
 quorum for the exercise of any of the powers or authority 
 conferred by this act, and an award by a majority shall be 
 valid. In case of a vacancy, the remaining two members of 
 the board shall exercise all the powers and authority of the 
 board until such vacancy is filled. Each member of the 
 board shall receive an annual salary of three thousand six 
 hundred dollars. 
 
 SEC. 13. The board shall organize by choosing one of its 
 members as chairman. Subject to the provisions of this act, 
 it may adopt its own rules of procedure and may change the 
 same from time to time in its discretion. The board, when it 
 shall deem it necessary to expedite its business, may from 
 time to time employ one or more expert examiners for such 
 length of time as may be required. It may also appoint a 
 secretary and such clerical help as it may deem necessary. 
 It shall fix the compensation of all assistants so appointed. 
 
 SEC. 14. The board shall keep its office at the city of San 
 Francisco, and shall be provided by the secretary of state with 
 a suitable room or rooms, necessary office furniture, sta- 
 tionery, and other supplies. The members of the board and 
 its assistants, shall be entitled to receive from the State their 
 actual and necessary expenses while traveling on the busi- 
 ness of the board, but such expenses shall be sworn to by the 
 person who incurred the same, and be approved by the chair- 
 man of the board, before payment is made. All salaries and 
 expenses authorized by this act shall be audited and paid
 
 884 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 out of the general funds of the State the same as other gen- 
 eral state expenses are audited and paid. 
 
 NOTICE OF HEARING 
 
 SEC. 15. Upon the filing with the board by any party in 
 interest of an application in writing stating the general 
 nature of any dispute or controversy concerning compensa- 
 tion under this act, it shall fix a time for the hearing thereof, 
 which shall not be more than forty days after the filing of 
 such application. The board shall cause notice of such hear- 
 ing to be given to each party interested by service of such 
 notice on him personally or by mailing a copy thereof to him 
 at his last known post office address at least ten days before 
 such hearing. Such hearing may be adjourned from time to 
 time in the discretion of the board, and hearings shall be 
 held at such places as the board shall designate. Either 
 party shall have the right to be present at any hearing, in 
 person or by attorney or any other agent, and to present 
 such testimony as shall be pertinent to the controversy be- 
 fore the board, but the board may, with or without notice to 
 either party, cause testimony to be taken, or inspection of 
 the premises where the injury occurred to be had, or the time 
 books and pay roll of the employer to be examined by any 
 member of the board or any examiner appointed by it, and 
 may from time to time, direct any employe claiming com- 
 pensation to be examined by a regular physician; the testi- 
 mony so taken and the results of any such inspection or 
 examination, to be reported to the board for its considera- 
 tion upon final hearing. The board, or any member thereof, 
 or any examiner appointed thereby shall have power and 
 authority to issue subpoenas to compel the attendance of 
 witnesses or parties, and the production of books, papers, or 
 records, and to administer oaths. Obedience to such sub- 
 poenas shall be enforced by the superior court of any county, 
 or city and county.
 
 TEXTS OF COMPENSATION ACTS 885 
 
 California 
 
 SEC. 16. After final hearing by said board, it shall make 
 and file (1) its findings upon all facts involved in the con- 
 troversy, and (2) its award, which shall state its determina- 
 tion as to the rights of the party. 
 
 SEC. 17. Either party may present a certified copy of the 
 award to the superior court for any county or city and county, 
 whereupon said court shall, without notice, render a judg- 
 ment in accordance therewith, which judgment, until and 
 unless set aside as hereinafter provided, shall have the same 
 effect as though duly rendered in an action duly tried and 
 determined by said court, and shall, with the like effect, be 
 entered and docketed. 
 
 REVIEW BY COURT 
 
 SEC. 18. The findings of fact made by the board acting 
 within its powers, shall, in the absence of fraud, be con- 
 clusive, and the award, whether judgment has been ren- 
 dered thereon or not, shall be subject to review only in the 
 manner and upon the grounds following: within thirty days 
 from the date of the award, any party aggrieved thereby may 
 file with the board an application in writing for a review of 
 such award, stating generally the grounds upon which such 
 review is sought; within thirty days thereafter the board 
 shall cause all documents and papers on file in the matter, 
 and a transcript of all testimony which may have been taken 
 therein, to be transmitted with their findings and award to 
 the clerk of the superior court of that county or city and 
 county wherein the accident occurred; such application for 
 a review may thereupon be brought on for hearing before 
 said court upon such record by either party on ten days' 
 notice to the other, subject, however, to the provisions of 
 law for a change of the place of trial or the calling of another 
 judge. Upon such hearing the court may confirm or set 
 aside such award, and any judgment which may theretofore 
 have been rendered thereon, but the same shall be set aside 
 only upon the following grounds:
 
 886 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 (1) That the board acted without or in excess of its 
 powers. 
 
 (2) That the award was procured by fraud. 
 
 (3) That the findings of fact by the board do not support 
 the award. 
 
 REMANDING OF RECORD 
 
 SEC. 19. Upon the setting aside of any award the court 
 may recommit the controversy and remand the record in the 
 case to the board, for further hearing or proceedings, or it 
 may enter the proper judgment upon the findings, as the 
 nature of the case shall demand. An abstract of the judg- 
 ment entered by the trial court upon the review of any award 
 shall be made by the clerk thereof upon the docket entry of 
 any judgment which may theretofore have been rendered 
 upon such award, and transcripts of such abstract may there- 
 upon be obtained for like entry upon the dockets of the 
 courts of other counties, or city and county. 
 
 SEC. 20. Any party aggrieved by a judgment entered upon 
 the review of any award, may appeal therefrom within the 
 time and in the manner provided for an appeal from the 
 orders of the superior court; but all such appeals shall be 
 placed on the calendar of the supreme court and brought to 
 a hearing in the same manner as criminal causes on such 
 calendar. 
 
 SEC. 21. No fees shall be charged by the clerk of any court 
 for the performance of any official service required by this 
 act, except for the docketing of judgments and for certified 
 copies or transcripts thereof. In proceedings to review an 
 award, costs as between the parties shall be allowed or not in 
 the discretion of the court. 
 
 SEC. 22. No claim for compensation under this act shall 
 be assignable before payment, but this provision shall not 
 affect the survival thereof; nor shall any claim for compensa- 
 tion, or compensation awarded, adjudged or paid, be sub- 
 ject to be taken for the debts of the party entitled thereto.
 
 TEXTS OF COMPENSATION ACTS 887 
 
 California 
 
 SEC. 23. A claim for compensation for the injury or death 
 of any employe, or any award or judgment entered thereon, 
 shall be entitled to a preference over the other debts of the 
 employer if and to the same extent as the wages of such 
 employe shall be eo preferred; but this section shall not im- 
 pair the lien of any judgment entered upon any award. 
 
 INSURANCE PROVISIONS 
 
 SEC. 24. Nothing in this act shall affect the organization 
 of any mutual or other insurance company, or any existing 
 contract for insurance of employers' liability, nor the right of 
 the employer to insure in mutual or other companies, in 
 whole or in part, against such liability, or against the lia- 
 bility for the compensation provided for by this act, or to 
 provide by mutual or other insurance, or by arrangement 
 with his employes, or otherwise, for the payment to such 
 employe's, their families, dependents, or representatives, of 
 sick, accident or death benefits, in addition to the com- 
 pensation provided for by this act. But liability for com- 
 pensation under this act shall not be reduced or affected by 
 any insurance, contributions, or other benefit whatsoever 
 due to or received by the person entitled to such compensa- 
 tion, and the person so entitled shall, irrespective of any 
 insurance or other contract, have the right to recover the 
 same directly from the employer, and in addition thereto, 
 the right to enforce in his own name, in the manner pro- 
 videc[ in this act, the liability of any insurance company, 
 which 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 insurance company, shall, to the extent thereof, be a 
 bar to recovery against the other of the amount so paid, and 
 provided further,that as between the employer and the in- 
 surance company, payment by either directly to the employe, 
 or to the person entitled to compensation, shall be subject 
 to the conditions of the insurance contract between them.
 
 888 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 SEC. 25. Every contract for the insurance of the compen- 
 sation herein provided for, or against liability therefor, shall 
 be deemed to be made subject to the provisions of this act, 
 and provisions thereof inconsistent with this act shall be 
 void. No company shall enter into any such contract of 
 insurance unless such company shall have been approved by 
 the commissioner of insurance, as provided by law. 
 
 SEC. 26. The making of a lawful claim against an em- 
 ployer for compensation under this act for the injury or 
 death of his employe" shall operate as an assignment of any 
 assignable cause of action in tort which the employe* or his 
 personal representative may have against any other party 
 for such injury or death, and such employer may enforce in 
 his own name the liability of such other party. 
 
 POSTING OF NOTICES 
 
 SEC. 27. The board shall cause to be printed and furnished 
 free of charge to any employer or employe such blank forms 
 as it shall deem requisite to facilitate or promote the efficient 
 administration of this act; it shall provide a proper record 
 book in which shall be entered and indexed the name of every 
 employer who shall file a statement of election under this act, 
 and the date of the filing thereof, and a separate book in 
 which shall be entered and indexed the name of every em- 
 ployer who shall file his withdrawal of such election, and the 
 date of the filing thereof; and a book in which shall be re- 
 corded all awards made by the board; and such other books 
 or records as it shall deem required by the proper and efficient 
 administration of this act; all such records to be kept in the 
 office of the board. Upon the filing of a statement of elec- 
 tion by an employer to become subject to the provisions of 
 this act, the board shall forthwith cause notice of the fact to 
 be given to his employe's, by posting and keeping continu- 
 ously posted in a public and conspicuous place such notice 
 thereof in the office, shop, or place of business of the em- 
 ployer, or by publishing, or in such other manner as the board
 
 TEXTS OF COMPENSATION ACTS 889 
 
 California 
 
 shall deem most effective, and the board shall cause notice 
 to be given in like manner of the filing of any withdrawal of 
 such election ; but notwithstanding the failure to give, or the 
 insufficiency of, any such notice, knowledge of all filed state- 
 ments of election and withdrawals of election, and of the 
 time of the filing of the same, shall conclusively be imputed 
 to all employes. 
 
 SEC. 28. Nothing in this act contained shall be construed 
 as impairing the right of parties interested, after the injury 
 or death of an employe, to compromise and settle upon such 
 terms as they may agree upon, any liability which may be 
 claimed to exist under this act on account of such injury or 
 death, nor as conferring upon the dependents of any injured 
 employe" any interest which he may not divert by such settle- 
 ment or for which he or his estate shall, in the event of such 
 settlement by him, be accountable to such dependents or 
 any of them. 
 
 SEC. 29. The sum of fifty thousand dollars is hereby ap- 
 propriated out of any moneys in the state treasury, not 
 otherwise appropriated, to be used by the industrial accident 
 board in carrying out the purposes of this act, and the con- 
 troller is hereby directed to draw his warrant on the general 
 fund from time to time in favor of said industrial accident 
 board for the amounts expended under its direction, and the 
 treasurer is hereby authorized and directed to pay the same. 
 
 SEC. 30. All acts or parts of acts inconsistent with this 
 act are hereby repealed. 
 
 *SEC. 31. This act shall take effect and be in force on and 
 after the first day of September, A. D. 1911. 
 
 (L. 1912, c. 39) 
 
 An act imposing additional duties and conferring additional 
 powers upon the industrial accident board, requiring cer- 
 tain statistical information, fixing a penalty for neglect or 
 refusal to give such information to said board on request, 
 requiring said board to report to the governor and au-
 
 890 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 thorizing it to give publicity to the results of its researches 
 and investigations and empowering said board to expend 
 in carrying out the requirements of this act a sum not to 
 exceed fifteen thousand dollars out of the funds heretofore 
 appropriated for carrying out the purposes of an act 
 entitled "An act relating to the liability of employers for 
 injuries or death sustained by their employe's, providing 
 for compensation for the accidental injury of employe's, 
 establishing an industrial accident board, making an ap- 
 propriation therefor, defining its powers and providing for 
 a review of its awards, approved April 8, 1911." 
 
 [Approved January 2, 1912] 
 
 The people of the State of California do enact as follows: 
 SECTION 1. It shall be the duty of the industrial accident 
 board to collect and compile statistics in regard to industrial 
 accidents happening in this State resulting in personal in- 
 jury and the cost and probable causes thereof, to investigate 
 methods and devices for the prevention of such accidents, 
 to investigate the comparative merits and relative cost of 
 the various forms of insurance against liability and compensa- 
 tion for personal injuries resulting from industrial accidents. 
 SEC. 2. It shall be the duty of every employer of labor 
 and of persons, firms, associations or corporations insuring 
 against liability of employers for damages or compensation 
 for personal injuries to employes by industrial accidents to 
 furnish to the industrial accident board, upon the written 
 request of a member thereof or an examiner appointed 
 thereby, any and all information in his or its possession or 
 under his or its control, pertinent to any of the matters re- 
 ferred to in the preceding section of this act. It shall be 
 unlawful for the said board, or any member thereof, or any 
 examiner appointed thereby, to divulge any information 
 obtained from any employer of labor, or from any person,
 
 TEXTS OF COMPENSATION ACTS 891 
 
 California 
 
 firm, association or corporation insuring against liability or 
 compensation for industrial accidents, without the written 
 consent of such employer, and of such person, firm, associa- 
 tion or corporation; and any member of the said board, or 
 any examiner appointed thereby who violates the provisions 
 of this section of this act, shall be guilty of a misdemeanor, 
 and for each and every such violation shall be, upon convic- 
 tion thereof, punishable by a fine of not less than ten dollars 
 ($10) or more than one hundred dollars ($100) or by im- 
 prisonment for not more than thirty (30) days, or by both 
 such fine and imprisonment; and any information so ob- 
 tained shall not be used against any such employer, person, 
 firm, association or corporation, in any action brought against 
 such employer, person, firm, association or corporation 
 without the written consent of such employer, person, firm, 
 association or corporation; provided, however, that this sec- 
 tion shall not prevent the industrial accident board from 
 making and publishing the results of its investigations and 
 researches as provided in sections 5 and 6 of this act. 
 
 SEC. 3. Any member of the said board or examiner ap- 
 pointed thereby may, during reasonable business hours, 
 enter any place of employment for the purpose of collecting 
 facts and statistics and examining the provisions made for 
 the safety and welfare of the employes therein. 
 
 SEC. 4. It shall be unlawful for any person, firm, corpora- 
 tion, agent or officer of a firm or corporation to fail, neglect 
 or refuse to comply with any of the foregoing provisions of 
 this act. Any person, firm, corporation, agent or officer of a 
 firm or corporation that knowingly violates or omits to 
 comply with any of the provisions of this act, shall be guilty 
 of a misdemeanor for each and every offense and shall be, 
 upon conviction thereof, punishable by a fine of not more 
 than ten dollars. 
 
 SEC. 5. The industrial accident board shall report the re- 
 sults of its investigations covering the calendar year of 1912
 
 892 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 to the governor of the State not later than February 1, 
 1913. 
 
 SEC. 6. The industrial accident board is authorized and 
 empowered to make public and publish at such times and in 
 such manner as it deems best, the result of its investigations 
 and researches together with all such other information in 
 relation to the liability of employers for damages or com- 
 pensation for personal injuries to their employe's as it may 
 deem essential to fully acquaint the people of the State with 
 the present law and its purpose and operation. 
 
 SEC. 7. The industrial accident board is hereby authorized 
 to draw upon and expend for the purposes set forth in this 
 act a sum not in excess of fifteen thousand dollars the same 
 to be paid out of the sum of fifty thousand dollars appro- 
 priated for the use of said board under section 29 of an act 
 entitled "An act relating to the liability of employers for 
 injuries or death sustained by their employes, establishing 
 an industrial accident board, making appropriation therefor, 
 defining its powers and providing for a review of its awards, 
 approved April 8, 1911," and the controller is hereby di- 
 rected to draw his warrants in favor of said board for sums 
 so expended when duly audited and approved by the state 
 board of control, and the treasurer is hereby authorized and 
 directed to pay the same. 
 
 (L. 1912, c. 53) 
 
 An act to provide for the keeping by employers of a record of 
 injuries suffered by their employe's; the reporting of such 
 injuries to the industrial accident board by employers and 
 attending physicians; the keeping by employers and insur- 
 ance companies of records of claims for injuries suffered 
 by employes and of compromises and settlements made 
 therefor and requiring the reporting thereof to said board; 
 and fixing a penalty for refusal or neglect to keep such 
 records or make such reports.
 
 893 
 
 California 
 
 [Approved January 10, 1912] 
 
 The people of the State of California do enact as follows: 
 SECTION 1. Every employer of labor in this State shall 
 keep a full, true and correct record of every personal injury 
 suffered by his or its employes, arising out of or in the course 
 of the employment, and resulting in death, or in disability 
 extending over a period of a week or more. Within fifteen 
 days after the happening of any such personal injury, a 
 written report thereof shall be mailed by the employer to the 
 industrial accident board informally, or on blanks to be 
 provided by said board for this purpose. The said report 
 shall contain the name of the employer, location of place 
 of employment, nature of employment, name, address, age, 
 nationality, sex and occupation of the injured person, length 
 of time the injured person had worked at the particular em- 
 ployment previous to injury, date and hour of the day or 
 night of the accident, the hour at which the injured employe" 
 began work on the date of the accident, nature of the injury, 
 cause of the injury and rate of wages of the injured employe". 
 SEC. 2. Upon the termination of the disability of the in- 
 jured employe" or at the expiration of sixty days from the 
 date of the accident,, if the disability should extend beyond 
 such period, the employer shall mail to the industrial acci- 
 dent board a supplemental report in relation to such dis- 
 ability, informally or on blanks to be provided by said board 
 for this purpose. Such report must contain complete state- 
 ments as to any claim made by the injured employe for 
 indemnification for the injury sustained, payment made to 
 him or in his behalf for medical, surgical or other care, claim 
 for compensation or damages made for such injuries and any 
 compromise or settlement of claim for compensation or dam- 
 ages entered into between the employer and such injured 
 employe, his heirs, dependents or legal representative. In 
 the event that any payment shall be made to such injured 
 employe, or his dependents at any time thereafter, in com-
 
 894 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 California 
 
 promise or settlement of a claim for compensation or dam- 
 ages, the amount of such payment shall be forthwith re- 
 ported by the employer to the industrial accident board. 
 
 SEC. 3. Every physician who attends any such injured 
 employe shall keep a record of this case. Within ten days 
 from the date of his first attendance upon the injured em- 
 ploye, he shall mail to the industrial accident board a re- 
 port, informally or on blanks to be provided by the said 
 board for this purpose. The said report shall contain the 
 name and address of the employer, name, address, sex and 
 age of the injured employe, date of accident, description of 
 the injury, probable nature and extent of disability. Upon 
 the termination of the disability of the injured employe or 
 the termination of said physician's attendance upon his 
 case, he shall forthwith mail to the industrial accident board 
 a supplemental report in relation to such case describing the 
 physical condition of the injured employe", his disability, 
 convalescence or discharge from the doctor's care. 
 
 SEC. 4. Every person, firm, association or corporation in- 
 suring against the liability of employers for damages or 
 compensation for personal injury to employe's or indem- 
 nifying any employer for, or on account of any such liability 
 shall keep a record thereof, and shall within the first five days 
 of each and every month, report in writing to the industrial 
 accident board, informally or on blanks to be provided by 
 said board for this purpose, every such injury to employe's 
 reported to it, every claim for damages or compensation for 
 such injury filed with such person, firm, association or cor- 
 poration and any settlement or compromise of any such 
 claim for damages or compensation whether made with such 
 injured employe", his heirs, dependents or legal representa- 
 tive. 
 
 SEC. 5. Every employer, physician or insurance company, 
 firm or association, shall furnish to the industrial accident 
 board all further information required by it in order to con-
 
 TEXTS OF COMPENSATION ACTS 895 
 
 Illinois 
 
 stitute a substantially complete and accurate history of 
 each injury and the damages or compensation paid therefor. 
 
 SEC. 6. The record required to be kept in pursuance of the 
 provisions of this act shall at all times be open to inspection 
 of the industrial accident board or any member thereof, 
 or any examiner appointed thereby. Any statement con- 
 tained in such report shall not be admissible as evidence in 
 any action arising out of the death or injury of any employe 
 by reason of the accident reported. 
 
 SEC. 7. It shall be unlawful for any person, firm, corpora- 
 tion, agent or officer of a firm or corporation to fail, neglect 
 or refuse to comply with any of the provisions of this act. 
 Any person, firm, corporation, agent or officer of a firm or 
 corporation that violates or omits to comply with any of the 
 provisions of this act, shall be guilty of a misdemeanor for 
 each and every offense and shall be, upon conviction thereof, 
 punishable by fine of not less than ten dollars or more than 
 one hundred dollars or by imprisonment for not more than 
 thirty days, or by both such fine and imprisonment. 
 
 SEC. 8. Nothing in this act shall apply to employers of 
 labor engaged in farming, dairying, agricultural or horticul- 
 tural pursuits, in poultry raising or domestic service. 
 
 ILLINOIS 
 
 (L. 1911, c. 000) 
 
 An act to promote the general welfare of the people of this 
 State, by providing compensation for accidental injuries 
 or death suffered in the course of employment. 
 Be it enacted by the people of the State of Illinois, repre- 
 sented in the General Assembly: 
 
 SECTION 1. That any employer covered by the provisions 
 of this act in this State may elect to provide and pay com- 
 pensation for injuries sustained by any employe arising out 
 of and in the course of the employment according to the 
 provisions of this act, and thereby relieve himself from Ha-
 
 896 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 bility for the recovery of damages, except as herein provided. 
 If, however, any such employer shall elect not to provide 
 and pay the compensation to any employe who has elected 
 to accept the provisions of this act, according to the provi- 
 sions of this act he shall not escape liability for injuries sus- 
 tained by such employ^ arising out of and in the course of 
 his employment because 
 
 (1) The employe assumed the risks of the employer's busi- 
 ness. 
 
 (2) The injury or death was caused in whole or in part by 
 the negligence of a fellow servant. 
 
 (3) The injury or death was proximately caused by the 
 contributory negligence of the employe 1 , but such contribu- 
 tory negligence shall be considered by the jury in reducing 
 the amount of damages. 
 
 (a) Every such employer is presumed to have elected to 
 provide and pay the compensation according to the provi- 
 sions of this act, unless and until notice in writing of his 
 election to the contrary is filed with the State Bureau of 
 Labor Statistics. 
 
 (b) Every employer within the provisions of this act fail- 
 ing to file such notice shall be bound hereby as to all his 
 employes who shall elect to come within the provisions of this 
 act until January 1st of the next succeeding year and for 
 terms of each year thereafter: Provided, any such employer 
 may elect to discontinue the payments of compensation 
 herein provided only at the expiration of any such calendar 
 year, by filing notice of his intention to discontinue such 
 payments, with the State Bureau of Labor Statistics, at least 
 sixty days prior to the expiration of any such calendar year, 
 and by posting such notice in the plant, shop, office or place 
 of work, or by personal service, in written or printed form, 
 upon such employe, at least sixty days prior to the expiration 
 of any such calendar year. 
 
 (c) In the event any employer elects to provide and pay
 
 TEXTS OF COMPENSATION ACTS 897 
 
 Illinois 
 
 compensation provided in this act, then every employe* of 
 such employer, as a part of his contract of hiring or who may 
 be employed at the time of the taking effect of this act and 
 the acceptance of its provisions by the employer, shall be 
 deemed to have accepted all the provisions of this act and 
 shall be bound thereby unless within thirty days after such 
 hiring and after the taking effect of this act, he shall file a 
 notice to the contrary with the Secretary of the State Bureau 
 of Labor Statistics, whose duty it shall be to immediately 
 notify the employer, and if so notified, the employer shall not 
 be deprived of any of his common-law or statutory defenses, 
 and until such notice to the contrary is given to the em- 
 ployer, the measure of liability of the employer for any in- 
 jury shall be determined according to the compensation 
 provisions of this act: Provided, however, that before any 
 such employe shall be bound by the provisions of this act, 
 his employer shall either furnish to such employe personally 
 at the time of his hiring, or post in a conspicuous place at the 
 plant or in the room or place where such employe is to be 
 employed, a legible statement of the compensation provisions 
 of this act. 
 
 SEC. 2. The provisions of this act shall apply to every 
 employer in the State engaged in the building, maintaining 
 or demolishing of any structure; in any construction or 
 electrical work; in the business of carriage by land or water 
 and loading and unloading in connection therewith (except 
 as to carriers who shall be construed to be excluded here- 
 from by the laws of the United States relating to liability to 
 their employes for personal injuries while engaged in inter- 
 state commerce where such laws are held to be exclusive of 
 all state regulations providing compensation for accidental 
 injuries or death suffered in the course of employment); in 
 operating general or terminal storehouses; in mining, surface 
 mining, or quarrying; in an.y enterprise, or branch thereof, 
 in which explosive materials are manufactured, handled or 
 
 57
 
 898 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 used in dangerous quantities; in any enterprise wherein 
 molten metal or injurious gases or vapors or inflammable 
 fluids are manufactured, used, generated, stored or conveyed 
 in dangerous quantities; and in any enterprise in which 
 statutory regulations are now or shall hereafter be imposed 
 for the guarding, using or the placing of machinery or ap- 
 pliances, or for the protection and safeguarding of the em- 
 ploye's therein, each of which employments is hereby deter- 
 mined to be especially dangerous, in which from the nature, 
 conditions and means of prosecution of the work therein, 
 extraordinary risks to life and limb of the employe engaged 
 therein are inherent, necessary or substantially unavoidable, 
 and as to each of which employments it is deemed necessary 
 to establish a new system of compensation for accidents to 
 the employes therein. 
 
 SEC. 3. No common law or statutory right to recover dam- 
 ages for injury or death sustained by any employe while en- 
 gaged in the line of his duty as such employe other than the 
 compensation herein provided shall be available to any em- 
 ploye who has accepted the provisions of this act or to any- 
 one wholly or partially dependent upon him or legally re- 
 sponsible for his estate: provided, that when the injury to the 
 employe was caused by the intentional omission of the 
 employer, to comply with statutory safety regulations, 
 nothing in this act shall affect the civil liability of the em- 
 ployer. If the employer is a partnership, such omission must 
 be that of one of the partners thereof, and if a corporation, 
 that of any elective officer thereof. 
 
 SEC. 4. The amount of compensation which the employer 
 who accepts the provisions of this act shall pay for injury to 
 the employe which results in death, shall be: 
 
 (a) If the employe leaves any widow, child or children, or 
 parent or other lineal heirs to whose support he had con- 
 tributed within five years previous to the time of his death, 
 a sum equal to four times the average annual earnings of the
 
 TEXTS OP COMPENSATION ACTS 899 
 
 Illinois 
 
 employe, but not less in any event than one thousand five 
 hundred dollars, and not more in any event than three thou- 
 sand five hundred dollars. Any weekly payments, other 
 than necessary medical or surgical fees, shall be deducted in 
 ascertaining such amount payable on death. 
 
 (6) If the employe leaves collateral heirs dependent upon 
 his earnings, such a percentage of the sum provided in sec- 
 tion (a) as the contributions which deceased made to the 
 support of these dependents, bore to his earnings. 
 
 (c) If the employe leaves no widow or child or children, 
 parents or lineal or collateral heirs dependent upon his earn- 
 ings, a sum not to exceed one hundred and fifty dollars for 
 burial expenses. 
 
 (d) All compensation provided for in this section to be 
 paid in case injury results in death, shall be paid in install- 
 ments equal to one-half the average earnings, at the same 
 intervals at which the wages or earnings of the employe were 
 paid while he was living; or if this shall not be feasible, then 
 the installments shall be paid weekly. 
 
 (e) The compensation to be paid for injuries which result 
 in death, as provided for in this section, shall be paid to the 
 personal representative of the deceased employe and shall 
 be distributed by such personal representative to the bene- 
 ficiaries entitled thereto, in accordance with the laws of this 
 State relating to the descent and distribution of personal 
 property. 
 
 SEC. 5. The amount of compensation which the employer 
 who accepts the provisions of this act shall provide and pay 
 for injury to the employe" resulting in disability shall be: 
 
 (a) Necessary first aid, medical, surgical and hospital 
 services, also medicine and hospital services for a period not 
 longer than eight weeks, not to exceed, however, the amount 
 of two hundred dollars, also necessary services of a physician 
 or surgeon during such period of disability, unless such em- 
 ploye elects to secure his own physician or surgeon.
 
 900 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 (6) If the period of disability lasts for more than six work- 
 ing days, and such fact is determined by the physician or 
 physicians, as provided in section 9, compensation equal to 
 one-half of the earnings, but not less than five dollars nor 
 more than twelve dollars per week, beginning on the eighth 
 day of disability, and as long as the disability lasts, or until 
 the amount of compensation paid equals the amount pay- 
 able as a death benefit. 
 
 (c) If any employe, by reason of any accident arising out 
 of and in the course of his employment, receive any serious 
 and permanent disfigurement to the hands or face, but which 
 injury does not actually incapacitate the employe" from pur- 
 suing his usual or customary employment so that it is possi- 
 ble to measure compensation in accordance with the scale 
 of compensation and the methods of computing the same 
 herein provided, such employe shall have the right to resort 
 to the arbitration provisions of this act for the purpose of 
 determining a reasonable amount of compensation to be 
 paid to such employe, but not to exceed one-quarter (^) of 
 the amount of his' compensation in case of death. 
 
 (d) If after the injury has been received it shall appear 
 upon medical examination as provided for in section 9, that 
 the employe has been partially, though permanently in- 
 capacitated from pursuing his usual and customary line of 
 employment, he shall receive compensation equal to one-half 
 of the difference between the average amount which he earned 
 before the accident, and the average amount which he is 
 earning, or is able to earn in some suitable employment or 
 business after the accident, if such employment is secured. 
 
 (e) In the case of complete disability which renders the 
 employe" wholly and permanently incapable of work, com- 
 pensation for the first eight years after the day the injury 
 was received, equal to fifty per cent of his earnings, but not 
 less than five dollars nor more than twelve dollars per week. 
 If complete disability continues after the payment of a sum
 
 TEXTS OF COMPENSATION ACTS 901 
 
 Illinois 
 
 equal to the amount of the death benefit or after the ex- 
 piration of the eight years, then a compensation during life, 
 equal to eight per cent of the death benefit which would have 
 been payable had the accident resulted in death. Such com- 
 pensation shall not be less than ten dollars per month and 
 shall be payable monthly. 
 
 (1) In case death occurs before the total of the payments 
 made equals the amount payable as a death benefit, as pro- 
 vided in section 4, article (a), then in case the employe 
 leaves any widow, child or children, or parents, or other 
 lineal heirs, they shall be paid the difference between the 
 compensation for death and the sum of such payment, but 
 in no case shall this sum be less than five hundred dollars. 
 
 (2) In cases of complete disability, after compensation 
 has been paid at the specified rate for a term of at least six 
 months, the employe shall have the privilege of filing a 
 petition in accordance with article (d) of section 4 of this act, 
 asking for a lump sum payment of the difference between the 
 sum of the payments received and the compensation to 
 which he was entitled when such permanent disability had 
 been definitely determined. For the purpose of this section, 
 blindness or the total and irrecoverable loss of sight, the loss 
 of both feet at or above the ankle, the loss of both hands at 
 or above the wrist, the loss of one hand and one foot, an in- 
 jury to the spine resulting in permanent paralysis of the legs 
 or arms, and a fracture of the skull resulting in incurable 
 imbecility or insanity, shall be considered complete and 
 permanent disability: Provided, these specific cases of com- 
 plete disability shall not, however, be construed as excluding 
 other cases. 
 
 (3) In fixing the amount of the disability payments, re- 
 gard shall be had to any payments, allowance or benefit 
 which the employe" may have received from the employer 
 during the period of his incapacity, except the expenses of 
 necessary medical or surgical treatment. In no event, ex-
 
 902 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 cept in cases of complete disability as defined above, shall 
 any weekly payment payable under the compensation plan 
 in this section provided exceed twelve dollars per week, or 
 extend over a period of more than eight years from the date 
 of the accident. In case an injured employe shall be in- 
 competent at the time when any right or privilege accrues 
 to him under the provisions of this act, a conservator or 
 guardian of the incompetent, appointed pursuant to law, 
 may on behalf of such incompetent, claim and exercise any 
 such right or privilege with the same force and effect as if the 
 employe himself had been competent and had claimed or 
 exercised said right or privilege; and no limitations of time 
 by this act provided, shall run so long as said incompetent 
 employe had no conservator or guardian. 
 
 SEC. 5J/2- Any person entitled to compensation under this 
 act, or any employer who shall be bound to pay compensa- 
 tion under this act, who shall desire to have such compensa- 
 tion, or any part thereof, paid in a lump sum, may petition 
 any court of competent jurisdiction of the county in which 
 the employe resided or worked at the time of disability or 
 death, asking that such compensation be so paid, and if upon 
 proper notice to the interested parties, and a proper showing 
 made before such court, it appears to the best interest of the 
 parties that such compensation be so paid, the court shall 
 order payment of a lump sum, and where necessary, upon 
 proper application being made, a guardian, conservator or 
 administrator, as the case may be, shall be appointed for any 
 person under disability who may be entitled to any such 
 compensation, and an employer bound by the terms of this 
 act, and liable to pay such compensation, may petition for 
 such appointment where no such legal representatives have 
 been appointed or acting for such party or parties so under 
 disability. 
 
 SEC. 6. The basis for computing the compensation pro- 
 vided for in sections 4 and 5 of this act shall be as follows :
 
 TEXTS OF COMPENSATION ACTS 903 
 
 Illinois 
 
 (a) The compensation shall be computed on the basis of 
 the annual earnings which the injured person received as 
 salary, wages or earnings in the employment of the same em- 
 ployer during the year next preceding the injury. 
 
 (6) Employment by the same employer shall be taken to 
 mean employment by the same employer in the grade in 
 which the employe was employed at the time of the accident, 
 uninterrupted by absence from work due to illness or any 
 other unavoidable cause. 
 
 (c) The annual earnings if not otherwise determinable 
 shall be regarded as three hundred times the average daily 
 earnings in such computation. 
 
 (d) If the injured person has not been engaged in the em- 
 ployment for a full year immediately preceding the accident, 
 the compensation shall be computed according to the annual 
 earnings, which persons of the same class in the same or in 
 neighboring employments of the same kind have earned 
 during such period. And if this basis of computation is im- 
 possible, or should appear to be unreasonable, three hun- 
 dred times the amount which the injured person earned on 
 an average on those days when he was working during the 
 year next preceding the accident, shall be used as a basis 
 for the computation. 
 
 (e) In the case of injured employes who earn either no 
 wage or less than three hundred times the usual daily wage 
 or earnings of the adult day laborers in the same line of in- 
 dustry of that locality, the yearly wage shall be reckoned 
 as three hundred times the average daily local wage. 
 
 (/) As to employes in employments in which it is the cus- 
 tom to operate for a part of the whole number of working 
 days in each year, such number shall be used instead of three 
 hundred as a basis for computing the annual earnings, pro- 
 vided the minimum number of days which shall be used for 
 the basis of the year's work shall be not less than two hun- 
 dred.
 
 904 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 (0) Earnings, for the purpose of this section, shall be based 
 on the earnings for the number of hours commonly regarded 
 as a day's work for that employment, and shall exclude over- 
 time earnings. The earnings shall not include any sum which 
 the employer has been accustomed to pay the employe 1 to 
 cover any special expense entailed on him by the nature of 
 his employment. 
 
 (h) In computing the compensation to be paid to any 
 employe" who, before the accident for which he claims com- 
 pensation, was disabled and drawing compensation under 
 the terms of this act, the compensation for each subsequent 
 injury shall be apportioned according to the proportion of 
 incapacity and disability caused by the respective injuries 
 which he may have suffered. 
 
 SEC. 7. The compensation herein provided shall be the 
 measure of the responsibility which the employer has assumed 
 for injuries or death that may occur to employes in his em- 
 ployment subject to the provisions of this act, and it shall 
 not be in any way reduced by contributions from employe's. 
 
 SEC. 8. If it is proved that the injury to the employe re- 
 sulted from his deliberate intention to cause such injury, no 
 compensation with respect to that injury shall be allowed. 
 
 SEC. 9. Any employe" entitled to receive disability pay- 
 ments shall be required if requested by the employer to sub- 
 mit himself for examination at the expense of the employer 
 to a duly qualified medical practitioner or surgeon selected 
 by the employer, at a time and place reasonably convenient 
 for the employe, as soon as practicable after the injury, and 
 also one week after the first examination, and thereafter at 
 intervals not oftener than once every four weeks, which ex- 
 aminations shall be for the purpose of determining the nature, 
 extent and probable duration of the injury received by the 
 employe, and for the purpose of adjusting the compensation 
 which may be due the employe" from time to time for disa- 
 bility according to the provisions of sections 4 and 5 of this
 
 TEXTS OF COMPENSATION ACTS 905 
 
 Illinois 
 
 act: Provided, however, that such examination shall be made 
 in the presence of a duly qualified medical practitioner or sur- 
 geon provided and paid for by the employe, if such employe" 
 so desires, and in the event of a disagreement between said 
 medical practitioners or surgeons as to the nature, extent 
 or probable duration of said injury or disability, they may 
 agree upon a third medical practitioner or surgeon, and, fail- 
 ing to agree upon such third medical practitioner or surgeon, 
 the judge of the county court of the county where the em- 
 ploye resided or was employed at the time of the injury, shall 
 within six days after petition filed in such court for that pur- 
 pose, select a third medical practitioner or surgeon and the 
 majority report of such three physicians as to the nature, 
 extent and probable duration of such injury or disability 
 shall be used for the purpose of estimating the amount of 
 compensation payable under this act. If the employe re- 
 fuses so to submit himself to examination or unnecessarily 
 obstructs the same, his right to compensation payments 
 shall be temporarily suspended until such examination shall 
 have taken place, and no compensation shall be payable 
 under this act during such period. 
 
 SEC. 10. Any question of law or fact arising in regard 
 to the application of this law in determining the com- 
 pensation payable hereunder shall be determined either by 
 agreement of the parties or by arbitration as herein provided. 
 In case any such question arises which cannot be settled by 
 agreement, the employe and the employer shall each select 
 a disinterested party and the judge of the county court or 
 other court of competent jurisdiction, of the county where 
 the injured employe resided or worked at the time of the in- 
 jury, shall appoint a third disinterested party, such persons 
 to constitute a Board of Arbitrators for the purpose of hear- 
 ing and determining all such disputed questions of law or 
 fact arising in regard to the application of this law in deter- 
 mining the compensation payable hereunder; and it shall be
 
 906 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 the duty of both employe and employer to submit to such 
 Board of Arbitrators not later than ten days after the 
 selection and appointment of such arbitrators all facts or 
 evidence which may be in their possession or under their 
 control, relating to the questions to be determined by said 
 arbitrators; and said Board of Arbitrators shall hear all the 
 evidence submitted by both parties and they shall have ac- 
 cess to any books, papers or records of either the employer 
 or the employe showing any facts which may be material to 
 the questions before them, and they shall be empowered to 
 visit the place or plant where the accident occurred, to direct 
 the injured employe to be examined by a regular practicing 
 physician or surgeon, and to do all other acts reasonably 
 necessary for a proper investigation of all matters in dispute. 
 A copy of the report of the arbitrators in each case shall be 
 prepared and filed by them with the State Bureau of Labor 
 Statistics, and shall be binding upon both the employer and 
 employe except for fraud and mistake: Provided, that either 
 party to such arbitration shall have the right to appeal from 
 such report or award of the arbitrators to the Circuit Court 
 or the court that appointed the third arbitrator of the county 
 where the injury occurred by filing a petition in such court 
 within twenty days after the filing of the report of the ar- 
 bitrators, and upon filing a good and sufficient bond, in the 
 discretion of the court, and upon such appeal the questions 
 in dispute shall be heard de novo, and either party may 
 have a jury upon filing a written demand therefor with his 
 petition. 
 
 SEC. 11. Any person entitled to payment under the com- 
 pensation provisions of this act from the employer shall have 
 the same preferential claim therefor against the property of 
 the employer as is now allowed by law for a claim by such 
 person against such employer for unpaid wages or for per- 
 sonal services, such preference to prevail against wage 
 claims of all other employes, not entitled to compensation
 
 TEXTS OF COMPENSATION ACTS 907 
 
 Illinois 
 
 for injuries, and the payments due under such compensation 
 provisions shall not be subject to attachment, levy, execu- 
 tion, garnishment or satisfaction of debts, except to the same 
 extent and in the same manner as wages or earnings for per- 
 sonal service are now subject to attachment, levy, execution, 
 garnishment or satisfaction of debts under the laws of this 
 State, and shall not be assignable. Any right to receive 
 compensation hereunder shall be extinguished by the death 
 of the person or persons entitled thereto, subject to the 
 provisions of this act relative to compensation for death re- 
 ceived in the course of employment. No claim of any 
 attorney-at-law for services in securing a recovery under this 
 act shall be an enforceable lien thereon unless the amount of 
 the same be approved in writing by a judge of a court of rec- 
 ord which approval may be made in term time, or vacation. 
 
 SEC. 12. Any contract or agreement made by any em- 
 ployer or his agent or attorney with any employe or any 
 other beneficiary of any claim under the provisions of this- 
 act within seven days after the injury shall be presumed to 
 be fraudulent. 
 
 SEC. 13. No employe" or beneficiary shall have power to 
 waive any of the provisions of this act in regard to the 
 amount of compensation which may be payable to such em- 
 ploye or beneficiary hereunder. 
 
 SEC. 14. No proceedings for compensation under the act 
 shall be maintained unless notice of the accident has been 
 given to the employer as soon as practicable after the hap- 
 pening thereof, and during such disability, and unless claim 
 for compensation has been made within six months after the 
 injury, "except that in case of an accident resulting in 
 temporary disability, notice of such accident must be given 
 to the employer within thirty days after said accident," or 
 in case of the death of the employe or in the event of his 
 incapacity, within six months after such death or incapacity, 
 or in the event that payments have been made under the
 
 Illinois 
 
 provisions of this act, within six months after such payments 
 have ceased. No want or defect or inaccuracy of such notice 
 shall be a bar to the maintenance of proceedings by arbitra- 
 tion or otherwise by the employe, unless the employer proves 
 that he is unduly prejudiced in such proceedings by such 
 want, defect or inaccuracy. Notice of the accident shall, in 
 substance, apprise the employer of the claim of compensa- 
 tion made and shall state the name and address of the em- 
 ploye injured, the approximate date and place of the acci- 
 dent, if known, and in simple language the cause thereof; 
 which notice may be served personally or by registered mail, 
 addressed to the employer at his last known residence or 
 place of business: Provided, that the failure on the part of 
 any person entitled to such compensation to give such notice 
 shall not relieve the employer from his liability for such 
 compensation, when the facts and circumstances of such 
 accident are known to such employer or his agent supervis- 
 ing work in which such employe was engaged at the time of 
 the injury. 
 
 SEC. 15. This act shall not affect or disturb the continu- 
 ance of any existing insurance, mutual aid, benefit or relief 
 association or department, whether maintained in whole or 
 in part by the employer or whether maintained by the em- 
 ploye's, the payment of benefits of such association or de- 
 partment being guaranteed by the employer or by some 
 person, firm or corporation for him: Provided, the employer 
 contributes to such association or department an amount 
 sufficient to insure the employes or other beneficiary the full 
 compensation herein provided, exclusive of the cost of the 
 maintenance of such association or department without any 
 expense to the employe". This act shall not prevent the 
 organization and maintaining under the insurance law of this 
 State of any benefit or insurance company for the purpose of 
 insuring against the compensation provided for in this act, 
 the expense of which is maintained by the employer. This
 
 TEXTS OF COMPENSATION ACTS 909 
 
 Illinois 
 
 act shall not prevent the organization or maintaining under 
 the insurance laws of this State of any voluntary mutual aid, 
 benefit or relief association among employe's for the payment 
 of additional accident or sick benefits. 
 
 No existing insurance, mutual aid, benefit or relief asso- 
 ciation or department shall, by reason of anything herein 
 contained, be authorized to discontinue its operation without 
 first discharging its obligations to any and all persons carry- 
 ing insurance in the same or entitled to relief or benefits 
 therein. 
 
 Any contract of employment, relief benefit, or insurance 
 or other device whereby the employe is required to pay any 
 premium or premiums for insurance against the compensa- 
 tion provided for in this act shall be null and void, and any 
 employer withholding from the wages of any employe any 
 amount for the purpose of paying any such premium shall be 
 guilty of a misdemeanor and punishable by a fine of not less 
 than ten dollars nor more than twenty-five dollars in each 
 offense in the discretion of the court. 
 
 SEC. 16. Any person who shall become entitled to com- 
 pensation under the provisions of this act, shall, in the event 
 of his inability to recover such compensation from the em- 
 ployer on account of his insolvency, be subrogated to all the 
 rights of such employer against any insurance company or 
 association which may have insured such employer, against 
 loss growing out of the compensation required by the pro- 
 visions of this act to be paid by such employer, and in such 
 case only, a payment of the compensation that has accrued 
 to the person entitled thereto in accordance with the provi- 
 sions of this act, shall relieve such insurance company from 
 such liability. 
 
 SEC. 17. Where the injury for which compensation is 
 payable under this act was caused under circumstances 
 creating a legal liability in some person, other than the em- 
 ployer, to pay damages in respect thereof:
 
 910 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 (a) The employe or beneficiary may take proceedings both 
 against that person to recover damages and against the 
 employer for compensation, but the amount of the compen- 
 sation which he is entitled to under this act shall be reduced 
 by the amount of damages recovered. 
 
 (6) If the employe or beneficiary has recovered compensa- 
 tion under this act, the employer by whom the compensation 
 was paid or the person who has been called upon to pay the 
 indemnity under sections 4 and 5 of this act, may be entitled 
 to indemnity from the person so liable to pay damages as 
 aforesaid, and shall be subrogated to the rights of the em- 
 ploye to recover damages therefor. 
 
 SEC. 18. An agreement or award may, at any time after 
 six months and before eighteen months from the date of 
 filing, be reviewed, upon the application of either party, on 
 the ground that the incapacity of the employe has subse- 
 quently increased or diminished. Such application shall be 
 made to any court of competent jurisdiction and unless the 
 parties consent to arbitration, the court may appoint a 
 medical practitioner to examine the employe and report 
 upon his condition; and upon his report, and after hearing 
 all the evidence the court may modify such agreement or 
 award, as may be just, by ending, increasing or diminishing 
 the compensation, subject to the limitations hereinbefore 
 provided. 
 
 SEC. 19. It shall be the duty of every employer within the 
 provisions of this act to send to the Secretary of the State 
 Bureau of Labor Statistics in writing an immediate report of 
 all accidents or injuries arising out of or in the course of the 
 employment and resulting in death; it shall also be the duty 
 of every such employer to report between the fifteenth and 
 the twenty-fifth of each month to the Secretary of the State 
 Bureau of Labor Statistics all accidents or injuries for which 
 compensation has been paid under this act, which accidents 
 or injuries entail a loss to the employe of more than one week's
 
 TEXTS OF COMPENSATION ACTS 911 
 
 Illinois 
 
 time, and in case the injury results in permanent disability, 
 such report shall be made as soon as it is determined that 
 such permanent disability has resulted or will result from 
 such injury. All such reports shall state the date of the 
 injury, including the time of day or night, the nature of the 
 employer's business, the age, sex, conjugal condition of the 
 injured person, the specific occupation of the injured person, 
 the direct cause of the injury and the nature of the accident, 
 the nature of the injury, the length of disability and, in case 
 of death, the length of disability before death, the wages of 
 the injured person, whether compensation has been paid to 
 the injured person, or to his legal representative or his heirs 
 or next of kin, the amount of compensation paid, the amount 
 paid for physicians', surgeons' and hospital bills, and by 
 whom paid, and the amount paid for funeral or burial ex- 
 penses, if known. The making of reports as provided herein 
 shall release the employer covered by the provisions of this 
 act, from making reports to any other officer of the State. 
 
 SEC. 20. Any person, firm or corporation who undertakes 
 to do or contracts with other to do, or have done for him, 
 them or it, any work embraced in section 2 of this act, re- 
 quiring such dangerous employment of employes in, or about 
 premises where he, they or it ; as principal or principals, 
 contract to do such work or any part thereof, and does not 
 require that the compensation provided for in this act shall 
 be insured to the employe or beneficiary by any such per- 
 son, firm or corporation undertaking to do such work and 
 any such person, firm or corporation who creates or carries 
 into operation any fraudulent scheme, artifice or device to 
 enable him, them or it to execute such work without such 
 person, firm or corporation being responsible to the employe 
 or beneficiaries entitled to such compensation under the pro- 
 visions of this act, such person, firm or corporation shall be 
 included in the term "employer" and with the immediate 
 employer shall be jointly and severally liable to pay the
 
 912 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Illinois 
 
 compensation herein provided for, and be subject to all the 
 provisions of this act. 
 
 SEC. 21. The term "employe" as used in this act shall be 
 held to include only such persons as may be exposed to the 
 necessary hazards of carrying on any employment or enter- 
 prise referred to in section 2 of this act. Persons whose 
 employment is of a casual nature and who are employed 
 otherwise than for the purpose of the employer's trade or 
 business, are not included in the foregoing definition. 
 
 SEC. 22. Section 21 shall not be construed to include any 
 employe engaged in any work of an incidental character un- 
 connected with the dangers necessarily involved in carrying 
 on any employment or enterprise referred to in section 2, or 
 in any work of a clerical or administrative nature which does 
 not expose the employe 1 to the inherent hazards of any such 
 employment or enterprise. 
 
 SEC. 23. Any willful neglect, refusal, or failure to do the 
 things required to be done by any section, clause, or provi- 
 sion of this act, on the part of the person or persons herein 
 required to do them, or any violation of any of the provi- 
 sions or requirements hereof, or any attempt to obstruct or 
 interfere with any court officer, member of an arbitration 
 board herein provided for, or with the Secretary of the 
 Bureau of Labor Statistics or his deputy, in the discharge 
 of the duties herein imposed upon any of them, or any re- 
 fusal to comply with the terms of this act, shall be deemed 
 a misdemeanor, punishable by a fine of not less than ten 
 dollars nor more than five hundred dollars, at the discretion 
 of the court. 
 
 SEC. 23J/2. The right of action for damages caused by any 
 such injury, at common law or any other statute in force 
 prior to the taking of effect hereof shall not be affected by 
 this act and every existing right of action for negligence or 
 to recover damages for injury resulting in death, is continued 
 and nothing in this act shall be construed a limiting the
 
 TEXTS OF COMPENSATION ACTS 913 
 
 Kansas 
 
 right of such action so accrued before the taking effect of 
 this act. 
 
 SEC. 24. The invalidity of any portion of this act shall in 
 no way affect the validity of any other portion thereof which 
 can be given effect without such invalid part. 
 
 SEC. 25. This act shall take effect and be in force on and 
 after the first day of May, 1912. 
 
 Approved by Governor, June 10th, 1911. 
 
 KANSAS 
 
 (L. 1911, c. 000) 
 
 An act to provide compensation for workmen injured in 
 certain hazardous industries. 
 Be it enacted by the Legislature of the State of Kansas: 
 
 THE OBLIGATION 
 
 SECTION 1. If in any employment to which this act ap- 
 plies, personal injury by accident arising out of and in the 
 course of employment is caused to a workman, his employer 
 shall, subject as hereinafter mentioned, be liable to pay 
 compensation to the workman in accordance with this act. 
 Save as herein provided, no such employer shall be liable for 
 any injury for which compensation is recoverable under this 
 act; provided, that (a) the employer shall not be liable under 
 this act in respect of any injury which does not disable the 
 workman for a period of at least two weeks from earning full 
 wages at the work at which he is employed; (6) if it is proved 
 that the injury to the workman results from his deliberate 
 intention to cause such injury, or from his willful failure to 
 use a guard or protection against accident required pursuant 
 to any statute and provided for him, or a reasonable and 
 proper guard and protection voluntarily furnished him by 
 said employer, or solely from his deliberate breach of statu- 
 tory regulations affecting safety of life or limb, or from his 
 
 58
 
 914 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 intoxication, any compensation in respect to that injury shall 
 be disallowed. 
 
 RESERVATION OF LIABILITY FOR WRONG OR NEGLIGENCE IN 
 CERTAIN CASES 
 
 SEC. 2. Where the injury was proximately caused by the 
 individual negligence, either of commission or omission, of 
 the employer, including such negligence of the directors or 
 of any managing officer or managing agent of such em- 
 ployer if a corporation, or of any of the partners if such 
 employer is a partnership, or of any member if such employer 
 is an association, but excluding the negligence of competent 
 employes in the performance of their duties or of the em- 
 ployer's duty delegated to them, the existing liability of the 
 employer shall not be affected by this act, but in such case 
 the injured workman, or if death results from such injury, 
 his dependents as herein defined, if they unanimously agree, 
 otherwise his legal representative, may elect between any 
 right of action against the employer upon such liability and 
 the right to compensation under this act. 
 
 RESERVATION OF PENALTIES 
 
 SEC. 3. Nothing in this act shall affect the liability of the 
 employer or employe to a fine or penalty under any other 
 statute. 
 
 SUBCONTRACTING 
 
 SEC. 4. (a) Where any person (in this section referred to 
 as principal) undertakes to execute any work which is a part 
 of his trade or business or which he has contracted to perform 
 and contracts with any other person (in this section referred 
 to as the contractor) for the execution by or under the con- 
 tractor of the whole or any part of the work undertaken by 
 the principal, the principal shall be liable to pay to any 
 workman employed in the execution of the work any com- 
 pensation under this act which he would have been liable to
 
 TEXTS OF COMPENSATION ACTS 915 
 
 Kansas 
 
 pay if that workman had been immediately employed by him; 
 and where compensation is claimed from or proceedings are 
 taken against the principal, then, in the application of this 
 act, references to the principal shall be substituted for refer- 
 ences to the employer, except that the amount of compen- 
 sation shall be calculated with reference to the earnings of 
 the workman under the employer by whom he is immediately 
 employed. (6) Where the principal is liable to pay compensa- 
 tion under this section, he shall be entitled to indemnity from 
 any person who would have been liable to pay compensation 
 to the workman independently of this section, and shall have 
 a cause of action therefor, (c) Nothing in this section shall be 
 construed as preventing a workman from recovering compen- 
 sation under this act from the contractor instead of the prin- 
 cipal, (d) This section shall not apply to any case where the 
 accident occurred elsewhere than on or in, or about the prem- 
 ises on which the principal has undertaken to execute work or 
 which are otherwise under his control or management, or on, 
 in, or about the execution of such work under his control or 
 management, (e) A principal contractor, when sued by a 
 workman of a subcontractor, shall have the right to implead 
 the subcontractor. (/) The principal contractor who pays 
 compensation voluntarily to a workman of a subcontractor 
 shall have the right to recover over against the subcontractor. 
 
 REMEDIES BOTH AGAINST EMPLOYER AND STRANGER 
 
 SEC. 5. Where the injury for which compensation is pay- 
 able under this act was caused under circumstances creating 
 a legal liability against some person other than the employer 
 to pay damages in respect thereof, (a) The workman may 
 take proceedings against that person to recover damages and 
 against any person liable to pay compensation under this 
 act for such compensation, but shall not be entitled to recover 
 both damages and compensation; and (6) If the workman 
 has recovered compensation, under this act, the person by 
 whom the compensation was paid, or any person who has
 
 916 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 been called on to indemnify him under the section of this act 
 relating to subcontracting, shall be entitled to indemnity 
 from the person so liable to pay damages as aforesaid, and 
 shall be subrogated to the rights of the workman to recover 
 damages therefor. 
 
 APPLICATION OF THE ACT 
 
 SEC. 6. This act shall apply only to employment in the 
 course of the employer's trade or business on, in, or about a 
 railway, factory, mine or quarry, electric, building or en- 
 gineering work, laundry, natural gas plant and all employ- 
 ments wherein a process requiring the use of any dangerous 
 explosive or inflammable materials is carried on, which is 
 conducted for the purpose of business, trade or gain; each of 
 which employments is hereby determined to be especially 
 dangerous, in which from the nature, conditions or means 
 of prosecution ot the work therein, extraordinary risk to 
 the life and limb of the workman engaged therein are inherent, 
 necessary, or substantially unavoidable, and as to each of 
 which employments it is deemed necessary to establish a new 
 system of compensation for injuries to workmen. This act 
 shall not apply in any case where the accident occurred be- 
 fore this act takes effect, and all rights which have accrued, 
 by reason of any such accident, at the time of the publication 
 of this act, shall be saved the remedies now existing therefor, 
 and the court shall have the same power as to them as if this 
 act had not been enacted. 
 
 SEC. 7. This act shall not be construed to apply to business 
 or employments which, according to law, are so engaged in 
 interstate commerce as to be not subject to the legislative 
 power of the state, nor to persons injured while they are so 
 engaged. 
 
 SEC. 8. It is hereby determined that the necessity for this 
 law and the reason for its enactment, exist only with regard 
 to employers who employ a considerable number of persons. 
 This act, therefore, shall only apply to employers by whom
 
 TEXTS OF COMPENSATION ACTS 917 
 
 Kansas 
 
 fifteen or more workmen have been [employed] continuously 
 for more than one month at the time of the accident and who 
 have elected or shall elect before the accident to come within 
 the provision hereof ; provided, however, that employers hav- 
 ing less than fifteen workmen may elect to come within the 
 provisions of this act in which case his employes shall be in- 
 cluded herein, as hereinafter provided. 
 
 DEFINITIONS 
 
 SEC. 9. In this act, unless the context otherwise requires : 
 (a) " Railway" includes street railways and interurbans, 
 and " employment on railways" includes work in depots; 
 power houses, round-houses, machine shops, yards, and upon 
 the right of way, and in the operation of its engines, cars and 
 trains, and to employes of express companies while running 
 on railroad trains. (6) "Factory" means any premises 
 wherein power is used in manufacturing, making, altering, 
 adapting, ornamenting, finishing, repairing or renovating 
 any article or articles for the purpose of trade or gain or of 
 the business carried on therein, including expressly any brick 
 yard, meat-packing house, foundry, smelter, oil refinery, lime 
 burning plant, steam heating plant, electric lighting plant, elec- 
 tric power plant and water power plant, powder plant, blast 
 furnace, paper mill, printing plant, flour mill, glass factory, 
 cement plant, artificial gas plant, machine or repair shop, 
 salt plant, and chemical manufacturing plant, (c) "Mine" 
 means any opening in the earth for the purpose of extract- 
 ing any minerals, and all underground workings, slopes, 
 shafts, galleries and tunnels, and other ways, cuts and open- 
 ings connected therewith, including those in the course of 
 being opened, sunk or driven; and includes all the appurtenant 
 structures at or about the openings of the mine, and any ad- 
 joining adjacent work place where the material from a mine 
 is prepared for use or shipment, (d) "Quarry" means any 
 place, not a mine, where stone, slate, clay, sand, gravel or 
 other solid material is dug or otherwise extracted from the
 
 918 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 earth for the purpose of trade or bargain or of the employer's 
 trade or business, (e) "Electrical work" means any kind of 
 work in or directly connected with the construction, installa- 
 tion, operation, alteration, removal or repair of wires, cables, 
 switchboards or apparatus, used for the transmission of 
 electrical current. (/) "Building work" means any work in 
 the erection, construction, extension, decoration, alteration, 
 repair or demolition of any building or structural appurte- 
 nance. (</) " Engineering work " means any work in the con- 
 struction, alteration, extension, repair or demolition of a 
 railway (as hereinbefore defined) bridge, jetty, dike, dam, res- 
 ervoir, underground conduit, sewer, oil or gas well, oil tank, 
 gas tank, water tower, or water works (including standpipes 
 or mains) any caisson work or work in artificially compressed 
 air, any work in dredging, pile driving, moving buildings, 
 moving safes, or in laying, repairing or removing, under- 
 ground pipes and connections, the erection, installing, re- 
 pairing, or removing of boilers, furnaces, engines and power 
 machinery (including belting and other connections), and 
 any work in grading or excavating where shoring is necessary 
 or power machinery or blasting powder, dynamite or other 
 high explosives is in use (excluding mining and quarrying). 
 (h) "Employer" includes any person or body of persons 
 corporate or unincorporate, and the legal representatives of 
 a deceased employer or the receiver or trustee of a person, 
 corporation, association or partnership, (i) "Workman" 
 means any person who has entered into the employment of 
 or works under contract of service or apprenticeship with an 
 employer, but does not include a person who is employed 
 otherwise than for the purpose of the employer's trade or 
 business. Any reference to a workman who has been injured 
 shall, where the workman is'dead, include a reference to his 
 dependents, as hereinafter defined, or to his legal representa- 
 tive, or where he is a minor or incompetent, to his guardian. 
 (j) "Dependents" means such members of the workman's
 
 TEXTS OF COMPENSATION ACTS 919 
 
 Kansas 
 
 family as were wholly or in part dependent upon the work- 
 man at the time of the accident. And "members of a family " 
 for the purposes of this act means only widow or husband, as 
 the case may be, and children; or if no widow, husband or 
 children, then parents and grandparents, or if no parents or 
 grandparents, then grandchildren; or if no grandchildren, 
 then brothers and sisters. In the meaning of this section 
 parents include step-parents, children include step-children, 
 and grandchildren include step-grandchildren, and brothers 
 and sisters include step-brothers and step-sisters, and children 
 and parents include that relation by legal adoption. 
 
 INCOMPETENCY OF WORKMAN 
 
 SEC. 10. In case an injured workman is mentally incom- 
 petent or a minor, or where death results from the injury, in 
 case any of his dependents as herein denned is mentally in- 
 competent or a minor, at the time when any right, privilege 
 or election accrues to him under this act, his guardian may, 
 in his behalf, claim and exercise such right, privilege, or 
 election, and no limitation of time, in this act provided for, 
 shall run, so long as such incompetent or minor has no 
 guardian. 
 
 AMOUNT OF COMPENSATION 
 
 SEC. 11. The amount of compensation under this act shall 
 be, (a) Where death results from injury: (1) If the workman 
 leaves any dependents wholly dependent upon his earnings, 
 an amount equal to three times his earnings for the preceding 
 year but not exceeding thirty-six hundred dollars and not 
 less than twelve hundred dollars, provided, such earnings 
 shall be computed upon the basis of the scale which he re- 
 ceived or would have been entitled to receive had he been at 
 work, during the thirty days next preceding the accident; 
 and, if the period of the workman's employment by the said 
 employer had been less than one year, then the amount of
 
 920 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 his earnings during the said year shall be deemed to be fifty- 
 two times his average weekly earnings during the period of 
 his actual employment under said employer; provided, that 
 the amount of any payments made under this act and any 
 lump sum paid hereunder for such injury from which death 
 may thereafter result shall be deducted from such sum; and 
 provided, however, that if the workman does not leave any 
 dependents, citizens of and residing at the time of the accident 
 in the United States or the Dominion of Canada, the amount 
 of compensation shall not exceed in any case seven hundred 
 and fifty dollars. (2) If the workman does not leave any 
 such dependents, but leaves any dependents in part depend- 
 ent upon his earnings, such proportion of the amount payable 
 under the foregoing provisions of this section, as may be 
 agreed upon or determined to be proportionate to the injury 
 to the said dependents; and (3) If he leaves no dependents, 
 the reasonable expense of his medical attendance and burial, 
 not exceeding one hundred dollars. (6) Where total in- 
 capacity for work results from injury, periodical payments 
 during such incapacity, commencing at the end of the second 
 week, equal to fifty per cent of his average weekly earnings 
 computed as provided in section 12 but in no case less than 
 six dollars per week or more than fifteen dollars per week, 
 (c) When partial incapacity for work results from injury, 
 periodical payments during such incapacity, commencing at 
 the end of the second week, shall not be less than twenty-five 
 per cent, nor exceed fifty per cent, based upon the average 
 weekly earnings computed as provided in section 12, but in 
 no case less than three dollars per week or more than twelve 
 dollars per week; provided, however, that if the workman is 
 under twenty-one years of age at the date of the accident 
 and the average weekly earnings are less than $10.00 his 
 compensation shall not be less than seventy-five per cent of 
 his average earnings. No such payment for total or partial 
 disability shall extend over a period exceeding ten years.
 
 TEXTS OF COMPENSATION ACTS 921 
 
 Kansas 
 
 RULE FOR COMPENSATION 
 
 SEC. 12. For the purposes of the provisions of this act re- 
 lating to "earnings" and "average earnings" of a workman, 
 the following rules shall be observed: (a) "Average earnings" 
 shall be computed in such manner as is best calculated to 
 give the average rate per week at which the workman was 
 being remunerated for the 52 weeks prior to the accident. 
 Provided, that where by reason of the shortness of time 
 during which the workman has been in the employment of 
 his employer, or the casual nature or the terms of the em- 
 ployment, it is impracticable to compute the rate of remu- 
 neration, regard shall be had to the average weekly amount 
 which, during the twelve months previous to the accident, 
 was being earned by a person in the same grade employed at 
 the same work by the same employer, or, if there is no person 
 employed, by a person in the same grade employed in the 
 same class of employment and in the same district. (6) Where 
 the workman had entered into concurrent contracts of serv- 
 ice with two or more employers under which he worked at 
 one time for one such employer and at another time for 
 another such employer, his "earnings" and his "average 
 earnings" shall be computed as if his earnings under all such 
 contracts were earnings in the employment of the employer 
 for whom he was working at the time of the accident, (c) Em- 
 ployment by the same employer shall be taken to mean em- 
 ployment by the same employer in the grade in which the 
 workman was employed at the time of the accident, uninter- 
 rupted by his absence of work due to illness or any other un- 
 avoidable cause, (d) Where the employer has been accus- 
 tomed to pay to the workman a sum to cover any special 
 expenses entailed upon him by the nature of his employment, 
 the sum so paid shall not be reckoned as part of the earnings. 
 (e) In fixing the amount of the payment, allowance shall be 
 made for any payment or benefit which the workman may
 
 922 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 receive from the employer during his period of incapacity. 
 (/) In the case of partial incapacity the payments shall be 
 computed to equal, as closely as possible, fifty per cent of the 
 difference between the amount of the "average earnings" of 
 the workman before the accident, to be computed as herein 
 provided, and the average amount which he is most probably 
 able to earn in some suitable employment or business after 
 the accident, subject, however, to the limitations hereinbefore 
 provided. 
 
 PAYMENTS TO THE INJURED WORKMAN 
 
 SEC. 13. The payments shall be made at the same time, 
 place and in the same manner as the wages of the workman 
 were payable at the time of the accident, but a judge of any 
 district court having jurisdiction upon the application of 
 either party may modify such regulation in a particular case 
 as to him may seem just. 
 
 COMPENSATION TO DEPENDENTS, ETC. 
 
 SEC. 14. Where death results from the injury and the 
 dependents of the deceased workman as herein defined, have 
 agreed to accept compensation, and the amount of such com- 
 pensation and the apportionment thereof between them has 
 been agreed to or otherwise determined, the employer may 
 pay such compensation to them accordingly (or to an ad- 
 ministrator if one be appointed) and thereupon be discharged 
 from all further liability for the injury. Where only the ap- 
 portionment of the agreed compensation between the depend- 
 ents is not agreed to, the employer may pay the amount into 
 any district court having jurisdiction or to the administrator 
 of the deceased workman, with the same effect. Where the 
 compensation has been so paid into court or to an adminis- 
 trator, the proper court, upon the petition of such adminis- 
 trator or any of such dependents, and upon such notice and 
 proof as it may order shall determine the distribution thereof 
 among such dependents. Where there are no dependents,
 
 TEXTS OF COMPENSATION ACTS 923 
 
 Kansas 
 
 medical and funeral expenses may be paid and distributed in 
 like manner. 
 
 SEC. 15. The payments due under this act, as well as any 
 judgment obtained thereunder, shall not be assignable or sub- 
 ject to levy, execution or attachment, except for medicine, 
 medical attention and nursing and no claim of any attorney 
 at law for services rendered in securing such indemnity or 
 compensation or judgment shall be an enforceable lien 
 thereon, unless the same has been approved in writing by the 
 judge of the court where said case was tried; but if no trial 
 was had, then by any judge of the district court of this state 
 to whom such matter has been regularly submitted, on due 
 notice to the party or parties hi interest of such submission. 
 
 REPORTS AS TO ACCIDENTS AND COMPENSATION 
 
 SEC. 16. Employers affected by this act shall report an- 
 nually to the state commissioner and factory inspector such 
 reasonable particulars in regard thereto as he may require, 
 including particulars as to all releases of liability under this 
 act and any other law. The penalty for failure to report or 
 for false report shall invalidate any such release of liability. 
 
 SEC. 17. (a) After an injury to the employe, if so requested 
 by his employer, the employe must submit himself for ex- 
 amination at some reasonable time to a reputable physician 
 selected by the employer, and from time to time thereafter 
 during the pendency of his claim for compensation, or during 
 the receipt by him for payment under this act, but he shall 
 not be required to so submit himself, more than once in two 
 weeks unless in accordance with such orders as may be made 
 by the proper court or judge thereof. Either party may upon 
 demand require a report of any examination made by the 
 physician of the other party upon payment of a fee of one 
 dollar therefor, (b) If the employe requests he shall be en- 
 titled to have a physician of his own selection present at the
 
 924 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 time to participate in such examinations, (c) Unless there 
 has been a reasonable opportunity thereafter for such 
 physician selected by the employe to participate in the ex- 
 amination in the presence of the physician selected by the 
 employer, the physician selected by the employer shall not be 
 permitted afterwards to give evidence of the condition of the 
 employ 6 in a dispute as to the injury, (d) Except as pro- 
 vided herein in this act there shall be no other disqualification 
 or privilege preventing the testimony of a physician who 
 actually makes an examination. 
 
 MEDICAL EXAMINATION BY NEUTRAL PHYSICIAN 
 
 SEC. 18. In case of a dispute as to the injury, the com- 
 mittee, or arbitrator as hereinafter provided, or the judge of 
 the district court shall have the power to employ a neutral 
 physician of good standing and ability, whose duty it shall 
 be, at the expense of the parties to make an examination of 
 the injured person, as the court may direct, on the petition 
 of either or both the employer and employe or dependents. 
 
 TESTIMONY BY COURT PHYSICIAN 
 
 SEC. 19. If the employer or the employe has a physician 
 make such an examination and no reasonable opportunity 
 is given to the other party to have his physician make ex- 
 amination, then, in case of a dispute as to the injury, the 
 physician of the party making such examination shall not 
 give evidence before the court unless a neutral physician 
 either has examined or then does examine the injured em- 
 ploye" and give testimony regarding the injuries. 
 
 REFUSAL OF MEDICAL EXAMINATION 
 
 SEC. 20. If the employe shall refuse examination by 
 physician selected by the employer, with the presence of a 
 physician of his own selection, and shall refuse an examina- 
 tion by the physician appointed by the court, he shall have 
 no right to compensation during the period from refusal until
 
 TEXTS OF COMPENSATION ACTS 925 
 
 Kansas 
 
 he, or some one in his behalf, notifies the employer or the 
 court that he is willing to have such examination. 
 
 CERTIFICATE OF PHYSICIAN 
 
 SEC. 21. A physician making an examination shall give to 
 the employer and to the workman a certificate as to the con- 
 dition of the workman, but such certificate shall not be com- 
 petent evidence of that condition unless supported by his 
 testimony if his testimony would have been admissible. 
 
 NOTICE AND CLAIM 
 
 SEC. 22. Proceedings for the recovery of compensation 
 under this act shall not be maintainable unless written no- 
 tice of the accident, stating the time, place, and particulars 
 thereof, and the name and address of the person injured, has 
 been given within ten days after the accident, and unless a 
 claim for compensation has been made within six months 
 after the accident, or in case of death, within six months 
 from the date thereof. Such notice shall be delivered by 
 registered mail, or by delivery to the employer. The want 
 of, or any defect in such notice, or in its service, shall not be 
 a bar unless the employer proves that he has, in fact, been 
 thereby prejudiced, or if such want or defect was occasioned 
 by mistake, physical or mental incapacity or other reasonable 
 cause, and the failure to make a claim within the period above 
 specified shall not be a bar, if such failure was occasioned by 
 a mistake, physical or mental incapacity or other reasonable 
 cause. 
 
 AGREEMENTS 
 
 SEC. 23. Compensation due under this act may be settled 
 by agreement. Every such agreement, other than a release, 
 shall be in the form hereinafter provided. 
 
 ARBITRATIONS 
 
 SEC. 24. If compensation be not so settled by agreement: 
 (a) If any committee representative of the employer and the
 
 926 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 workman exists, organized for the purpose of settling disputes 
 under this act, the matter shall, unless either party objects 
 by notice in writing delivered or sent by registered mail to 
 the other party before the committee meets to consider the 
 matter, be settled in accordance with its rules by such com- 
 mittee or by an arbitrator selected by it. (6) If either party 
 so objects, or there is no such committee, or the committee 
 or the arbitrator to whom it refers the matter fails to settle 
 it within sixty days from the date of the claim, the matter 
 may be settled by a single arbitrator agreed on by the parties, 
 or appointed by any judge of a court where an action might 
 be maintained. The consent to arbitration shall be in writing 
 and signed by the parties and may limit the fees of the arbi- 
 trator and the time within which the award must be made. 
 And unless such consent and the order of appointment ex- 
 pressly refers other questions, only the question of the 
 amount of compensation shall be deemed to be in issue. 
 
 THE DUTIES OF ARBITRATOR 
 
 SEC. 25. The arbitrator shall not be bound by technical 
 rules of procedure or evidence, but shall give the parties rea- 
 sonable opportunity to be heard and act reasonably and with- 
 out partiality. He shall make and file his award, with the 
 consent to arbitration attached in the office of the clerk of the 
 proper district court within the time limited in the consent, 
 or if no time limit is fixed therein, within sixty days after his 
 selection, and shall give notice of such filing to the parties by 
 mail. 
 
 ARBITRATOR'S FEES 
 
 SEC. 26. The arbitrator's fees shall be fixed by the consent 
 to arbitration or be agreed to by the parties before the ar- 
 bitration, and if not so fixed or agreed to, they shall not ex- 
 ceed $10.00 per day, for not to exceed ten days, and dis- 
 bursements for expense. The arbitrator shall tax or appor- 
 tion the costs of such fees in his discretion and shall add the
 
 TEXTS OF COMPENSATION ACTS 927 
 
 Kansas 
 
 amount taxed or apportioned against the employer to the 
 first payment made under the award, and he shall note the 
 amount of his fees on the award and shall have a lien therefor 
 on the first payments due under the award. 
 
 FORM OF AGREEMENTS AND AWARD 
 
 SEC. 27. Every agreement for compensation and every 
 award shall be in writing, signed and acknowledged by the 
 parties or by the arbitrator or secretary of the committee 
 hereinbefore referred to, and shall specify the amount due 
 and unpaid by the employer to the workman up to the date 
 of the agreement or award, and if any, the amount of the 
 payments thereafter to be paid by the employer to the work- 
 man and the length of time such payments shall continue. 
 
 FILING AGREEMENTS, AWARDS, ETC. 
 
 SEC. 28. It shall be the duty of the employer to file or 
 cause to be filed every release of liability hereunder, every 
 agreement for an award of compensation, or modifying an 
 agreement for or award of compensation, under this act, if 
 not filed by the committee or arbitrator, to which he is a 
 party, or a sworn copy thereof, in the office of the district 
 court in the county in which the accident occurred within 
 sixty days after it is made, otherwise it shall be void as 
 against the workman. The said clerk shall accept, receipt 
 for, and file any such release, agreement or award, without 
 fee, and record and index it in the book kept for that purpose. 
 Nothing herein shall be construed to prevent the workman 
 from filing such agreement or award. 
 
 AGREEMENTS AND AWARDS WHEN CANCELED 
 
 SEC. 29. At any time within one year after an agreement 
 or award has been so filed, a judge of a district court having 
 jurisdiction may, upon the application of either party, cancel 
 such agreement or award, upon such terms as may be just,
 
 928 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 if it be shown to his satisfaction that the workman has re- 
 turned to work and is earning approximately the same or 
 higher wages as or than he did before the accident, or that 
 the agreement or award has been obtained by fraud or undue 
 unfluence, or that the committee or arbitrator making the 
 award acted without authority, or was guilty of serious mis- 
 conduct, or that the award is grossly inadequate or grossly 
 excessive, or if the employe absents himself so that a reason- 
 able examination of his condition cannot be made, or has 
 departed beyond the boundaries of the United States or 
 Canada. 
 
 STAYING PROCEEDINGS UPON AGREEMENT OR AWARD 
 
 SEC. 30. At any time after the filing of an agreement or 
 award and before judgment has been granted thereon, the 
 employer may stay proceedings thereon by filing in the 
 office of the clerk of the district court wherein such agree- 
 ments or award is filed : (a) A proper certificate of a qualified 
 insurance company that the amount of the compensation to 
 the workman is insured by it : (6) A proper bond undertaking 
 to secure the payment of the compensation. Such certificate 
 or bond shall first be approved by a judge of the said district 
 court. 
 
 JUDGMENT UPON AGREEMENT OR AWARD 
 
 SEC. 31. At any time after an agreement or award has 
 been filed, the workman may apply to the said district court 
 for judgment against the employer for a lump sum equal to 
 eighty per cent of the amount of payments due and unpaid 
 and prospectively due under the agreement or award; and, 
 unless the agreement or award be stayed, modified or can- 
 celed, or the liability thereunder be redeemed or otherwise 
 discharged, the court shall examine the workman under 
 oath, and if satisfied that the application is made because 
 of doubt as to the security of his compensation, shall com-
 
 TEXTS OF COMPENSATION ACTS 929 
 
 Kansas 
 
 pute the sum and direct judgment accordingly, as if in an 
 action; provided, that if the employer shall give a good and 
 sufficient bond, approved by the court, no execution shall 
 issue on such judgment so long as the employer continues to 
 make payments in accordance with the original agreement 
 or award undiminished by the discount. 
 
 REVIEW OR MODIFICATION OF AGREEMENT OR AWARD 
 
 SEC. 32. An agreement or award may be modified at any 
 time by a subsequent agreement; or, at any time after one 
 year from the date of filing; it may be reviewed, upon the 
 application of either party on the ground that the incapacity 
 of the workman has subsequently increased or diminished. 
 Such application shall be made to the said district court; 
 and, unless the parties consent to arbitration, the court 
 may appoint a medical practitioner to examine the workman 
 and report to it; and upon his report and after hearing the 
 evidence of the parties, the court may modify such agreement 
 or award, as may be just, by ending, increasing or diminishing 
 the compensation, subject to the limitations hereinbefore 
 provided. 
 
 REDEMPTION OF LIABILITY 
 
 SEC. 33. Where any payment has been continued for not 
 less than six months the liability therefor may be redeemed 
 by the employer by the payment to the workman of a lump 
 sum of an amount equal to eighty per cent of the payments 
 which may become due according to the award, such amount 
 to be determined by agreement, or, in default thereof, upon 
 application, to a judge of a district court having jurisdiction. 
 Upon paying such amount the employer shall be discharged 
 from all further liability on account of the injury, and be 
 entitled to a duly executed release, upon filing which or other 
 due proof of payment, the liability upon any agreement or 
 award shall be discharged of record. 
 59
 
 930 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 INSURANCE 
 
 SEC. 34. Where the payment of compensation to the 
 workman is insured, by a policy or policies, at the expense 
 of the employer, the insurer shall be subrogated to the 
 rights and duties under this act of the employer, so far as 
 appropriate. 
 
 COURTS 
 
 SEC. 35. All references hereinbefore to a district court 
 of the state of Kansas having jurisdiction of a civil action 
 between the parties shall be construed as relating to the then 
 existing code of civil procedure. Such court shall make all 
 rules necessary and appropriate to carry out the provisions 
 of this act. 
 
 ACTIONS 
 
 SEC. 36. A workman's right to compensation under this 
 act, may, in default of agreement or arbitration, be determined 
 and enforced by action in any court of competent juris- 
 diction. In every such action the right to trial by jury shall 
 be deemed waived and the case tried by the court without 
 a jury, unless either party, with his notice of trial, or when the 
 case is placed upon the calendar demand a jury trial. The 
 judgment in the action, if in favor of the plaintiff, shall be 
 for a lump sum equal to the amount of the payments then 
 due and prospectively due under this act, with interest on 
 the payments overdue, or, in the discretion of the trial judge, 
 for periodical payments as in an award. Where death 
 results from injury, the action shall be brought by the de- 
 pendent or dependents entitled to the compensation or by 
 the legal representative of the deceased for the benefit of 
 the dependents as herein defined; and in such action the 
 judgment may provide for the proportion of the award to 
 be distributed to or between the several dependents; other- 
 wise such proportions shall be determined by the proper
 
 TEXTS OF COMPENSATION ACTS 931 
 
 Kansas 
 
 probate court. An action to set aside a release or other 
 discharge of liability on the ground of fraud or mental in- 
 competency may be joined with an action of compensation 
 under this act. No action or proceeding provided for in this 
 act shall be brought or maintained outside of the state of 
 Kansas, and notice thereof may be given by publication 
 against nonresidents of the state in the manner now pro- 
 vided by article 7 of Chapter 95, General Statutes of Kansas 
 of 1909 so far as the same may be applicable, and by per- 
 sonal service of a true copy of the first publication within 
 twenty-one days after the date of the said first publication 
 unless excused by the court upon proper showing that such 
 service cannot be made. 
 
 WHEN THE CAUSE OF ACTION ACCRUES 
 
 SEC. 37. The cause of action shall be deemed in every 
 case, including a case where death results from the injury 
 to have accrued to the injured workman at the time of the 
 accident; and the time limited in which to commence an 
 action for compensation therefor shall run as against him, 
 his legal representatives and dependents from that date. 
 
 ATTORNEY'S LIENS 
 
 SEC. 38. Contingent fees of attorneys for services and 
 proceedings under this act shall in every case be subject to 
 approval by the court. 
 
 CERTIFICATE REQUIRED 
 
 SEC. 39. If the superintendent of insurance by and with 
 the advice and written approval of the attorney general 
 certifies that any scheme of compensation, benefit or insur- 
 ance for the workman of an employer in any employment 
 to which this act applies, whether or not such scheme in- 
 cludes other employers and their workmen, provides scales 
 of compensation not less favorable to the workmen and their
 
 932 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 dependents than the corresponding scales contained in this 
 act, and that, where the scheme provides for contributions 
 by the workmen, the scheme confers benefits at least equiva- 
 lent to those contributions, in addition to the benefits to 
 which the workmen would have been entitled under this 
 act or their equivalents the employer may, while the cer- 
 tificate is in force, contract with any of his workmen that 
 the provisions of the scheme shall be substituted for the 
 provisions of this act; and thereupon the employer shall be 
 liable only in accordance with that scheme; but, save as 
 aforesaid, this act shall not apply notwithstanding any 
 contract to the contrary made after this act becomes a law. 
 
 CONDITION TO CERTIFICATE 
 
 SEC. 40. No scheme shall be so certified which does not 
 contain suitable provisions for the equitable distribution 
 of any moneys or securities held for the purpose of the scheme, 
 after due provision has been made to discharge the liabilities 
 already accrued, if and when such certificate is revoked or 
 the scheme otherwise terminated. 
 
 CERTIFICATE TO BE REVOCABLE 
 
 SEC. 41. If at any time the scheme no longer fulfills the 
 requirements of this article, or is not fairly administered, or 
 other valid and substantial reasons therefor exist, the superin- 
 tendent of insurance by and with the attorney general shall 
 revoke the certificate and the scheme shall thereby be 
 terminated. 
 
 INFORMATION TO BE REPORTED 
 
 SEC. 42. Where a certified scheme is in effect the employer 
 shall answer all such inquiries and furnish all such accounts 
 in regard thereto as may be required by the superintendent. 
 
 SEC. 43. The superintendent of insurance may make all 
 rules and regulations necessary to carry out the purposes of 
 the four preceding sections.
 
 TEXTS OF COMPENSATION ACTS 933 
 
 Kansas 
 
 SEC. 44. All employers as defined by this act who shall 
 elect to come within the provisions of this act and of all acts 
 amendatory hereof shall do so by filing a statement to such 
 effect with the secretary of state of this state at any time 
 after taking effect of this act, which election shall be binding 
 upon such employer for the term of one year from the date 
 of the filing of such statement, and thereafter, without 
 further act on his part, for successive terms of one year each, 
 unless such employer shall, at least sixty days prior to the 
 expiration of such first or of any succeeding year, file in the 
 office of the secretary of state a notice in writing to the effect 
 that he withdraws his election to be subject to the pro- 
 visions of this act. Notice of such election or withdrawal 
 shall be forthwith posted by such employer in conspicuous 
 places in and about his place of business. 
 
 SEC. 45. Every employ^ entitled to come within the pro- 
 visions of this act, shall be presumed to have done so un- 
 less he serve written notice, before injury, upon his em- 
 ployer that he elects not to accept thereunder and thereafter 
 any such employ^ desiring to change his election shall only 
 do so by serving written notice thereof upon his employer. 
 Any contract wherein an employer requires of an employe" as 
 a condition of employment that he shall elect not to come 
 within the provisions of this act shall be void. 
 
 SEC. 46. In any action to recover damages for a personal 
 injury sustained within this state by an employ 6 (entitled 
 to come within the provisions of this act) while engaged in 
 the line of his duty as such or for death resulting from personal 
 injury so sustained, in which recovery is sought upon the 
 ground of want of due care of the employer or of any officer, 
 agent or servant of the employer, where such employer is 
 within the provisions hereof, it shall not be a defense to any 
 employer (as herein in this act defined) who shall not have 
 elected, as hereinbefore provided, to come within the pro- 
 visions of this act: (a) That the employe either expressly or
 
 934 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Kansas 
 
 impliedly assumed the risk of the hazard complained of; (6) 
 that the injury or death was caused in whole or in part by the 
 want of due care of a fellow servant; (c) that such employe 
 was guilty of contributory negligence but such contributory 
 negligence of said employe shall be considered by the jury 
 in assessing the amount of recovery. 
 
 SEC. 47. In an action to recover damages for a personal 
 injury sustained within this state by an employe (entitled to 
 come within the provisions of this act) while engaged in the 
 line of his duty as such or for death resulting from personal 
 injury so sustained in which recovery is sought upon the 
 ground of want of due care of the employer or of any officer, 
 agent or servant of the employer, and where such employer 
 has elected to come and is within the provisions of this act as 
 hereinbefore provided, it shall be a defense for such employer 
 in all cases where said employe has elected not to come 
 within the provisions of this act; (a) that the employe 
 either expressly or impliedly assumed the risk of the hazard 
 complained of; (6) that the injury or death was caused in 
 whole or in part by the want of due care of a fellow servant; 
 (c) that said employe" was guilty of contributory negligence; 
 provided, however, that none of these defenses shall be 
 available where the injury was caused by the willful or gross 
 negligence of such employer, or of any managing officer, or 
 managing agent of said employer, or where under the law 
 existing at the time of the death or injury such defenses are 
 not available. 
 
 SEC. 48. Nothing in this act shall be construed to amend 
 or repeal section 6999 of the General Statutes of Kansas of 
 1909 or House bill No. 240 of the Session of 1911, the same 
 being " An act relating to the liability of common carriers by 
 railroads to their employes in certain cases, and repealing all 
 acts and parts of acts so far as the same are in conflict here^ 
 with." 
 
 SEC. 49. This act shall take effect and be in force from and
 
 TEXTS OF COMPENSATION ACTS 935 
 
 Massachusetts 
 
 after its publication in the statute book, and the first day of 
 January, 1912. 
 
 MASSACHUSETTS 
 (L. 1911, c. 751, as amended by L. 1912, c. 571) 
 
 An Act relative to payments to employe's for personal in- 
 juries received in the course of their employment and to the 
 prevention of such injuries. 
 Be it enacted by the Senate and House of Representatives 
 
 in General Court assembled, and by the authority of the 
 
 same, as follows: 
 
 PART I 
 
 MODIFICATION OF REMEDIES 
 
 SECTION 1. In an action to recover damages for personal 
 injury sustained by an employ 6 in the course of his employ- 
 ment, or for death resulting from personal injury so sustained, 
 it shall not be a defense : 
 
 1. That the employe was negligent; 
 
 2. That the injury was caused by the negligence of a 
 fellow employe"; 
 
 3. That the employe" had assumed the risk of the injury. 
 SEC. 2. The provisions of section one shall not apply to 
 
 actions to recover damages for personal injuries sustained by 
 domestic servants and farm laborers. 
 
 SEC. 3. The provisions of section one shall not apply to 
 actions to recover damages for personal injuries sustained by 
 employes of a subscriber. 
 
 SEC. 4. The provisions of sections one hundred and 
 twenty-seven to one hundred and thirty-five, inclusive, and 
 of one hundred and forty-one to one hundred and forty-three, 
 inclusive, of chapter five hundred and fourteen of the acts of 
 the year nineteen hundred and nine, and of any acts in
 
 936 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 amendment thereof, shall not apply to employe's of a sub- 
 scriber while this act is in effect. 
 
 SEC. 5. An employe of a subscriber shall be held to have 
 waived his right of action at common law to recover damages 
 for personal injuries if he shall not have given his employer 
 at the time of his contract of hire, notice in writing that he 
 claimed such right, or if the contract of hire was made before 
 the employer became a subscriber, if the employe 1 shall not 
 have given the said notice within thirty days of notice of such 
 subscription. An employe 1 who has given notice to his em- 
 ployer that he claimed his right of action at common law may 
 waive such claim by a notice in writing which shall take effect 
 five days after it is delivered to the employer or his agent. 
 (Subject to approval Industrial Board. L. 1912, c. 666.) 
 
 PART II 
 
 PAYMENTS 
 
 SECTION 1. If an employe 1 , who has not given notice of his 
 claim of common-law rights of action, as provided in Part I, 
 section five, or who has given such notice and has waived 
 the same, receives a personal injury arising out of and in the 
 course of his employment, he shall be paid compensation by 
 the association, as hereinafter provided, if his employer is a 
 subscriber at the time of the injury. 
 
 SEC. 2. If the employe is injured by reason of his serious 
 and willful misconduct, he shall not receive compensation. 
 
 SEC. 3. If the employe is injured by reason of the serious 
 and willful misconduct of a subscriber or of any person 
 regularly entrusted with and exercising the powers of super- 
 intendence, the amounts of compensation hereinafter pro- 
 vided shall be doubled. In such case the subscriber shall re- 
 pay to the association the extra compensation paid to the 
 employe. If a claim is made under this section the sub- 
 scriber shall be allowed to appear and defend against such 
 claims only.
 
 TEXTS OF COMPENSATION ACTS 937 
 
 Massachusetts 
 
 SEC. 4. No compensation shall be paid under this act for 
 any injury which does not incapacitate the employe" for a 
 period of at least two weeks from earning full wages, but if 
 incapacity extends beyond the period of two weeks, compen- 
 sation shall begin on the fifteenth day after the injury. 
 
 SEC. 5. During the first two weeks after the injury, the 
 association shall furnish reasonable medical and hospital 
 services, and medicines when they are needed. 
 
 SEC. 6. If death results from the injury, the association 
 shall pay the dependents of the employe, wholly dependent 
 upon his earnings for support at the time of the injury, a 
 weekly payment equal to one-half his average weekly wages, 
 but not more than ten dollars nor less than four dollars a 
 week, for a period of three hundred weeks from the date of 
 the injury. If the employ 6 leaves dependents only partly 
 dependent upon his earnings for support at the time of his 
 injury, the association shall pay such dependents a weekly 
 compensation equal to the same proportion of the weekly 
 payments for the benefit of persons wholly dependent as the 
 amount contributed by the employe" to such partial depend- 
 ents bears to the annual earnings of the deceased at the time 
 of his injury. When weekly payments have been made to an 
 injured employe before his death, the compensation to de- 
 pendents shall begin from the date of the last of such pay- 
 ments, but shall not continue more than three hundred weeks 
 from the date of the injury. 
 
 SEC. 7. The following persons shall be conclusively pre- 
 sumed to be wholly dependent for support upon a deceased 
 employe" : 
 
 (a) A wife upon a husband with whom she lives at the time 
 of his death. 
 
 (6) A husband upon a wife with whom he lives at the time 
 of her death. 
 
 (c) A child or children under the age of eighteen years (or 
 over said age, but physically or mentally incapacitated from
 
 938 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 earning) upon the parent with whom he is or they are living 
 at the time of the death of such parent, there being no sur- 
 viving dependent parent. In case there is more than one 
 child thus dependent, the death benefit shall be divided 
 equally among them. 
 
 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 per- 
 sons 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. 
 
 SEC. 8. If the employ 6 leaves no dependents, the associa- 
 tion shall pay the reasonable expense of his last sickness and 
 burial, which shall not exceed two hundred dollars. 
 
 SEC. 9. While the incapacity for work resulting from the 
 injury is total, the association shall pay the injured employe 1 
 a weekly compensation equal to one-half his average weekly 
 wages, but not more than ten dollars nor less than four 
 dollars a week; and in no case shall the period covered by such 
 compensation be greater than five hundred weeks, nor the 
 amount more than three thousand dollars. 
 
 SEC. 10. While the incapacity for work resulting from the 
 injury is partial, the association shall pay the injured em- 
 ploye" a weekly compensation equal to one-half the difference 
 between his average weekly wages before the injury and the 
 average weekly wages which he is able to earn thereafter, 
 but not more than ten dollars a week ; and in no case shall the 
 period covered by such compensation be greater than three 
 hundred weeks from the date of the injury. 
 
 SEC. 11. In case of the following specified injuries the 
 amounts hereinafter named shall be paid in addition to all 
 other compensations:
 
 TEXTS OF COMPENSATION ACTS 939 
 
 Massachusetts 
 
 (a) For the loss by severance of both hands at or above the 
 wrist, or both feet at or above the ankle, or the loss of one 
 hand and one foot, or the reduction to one-tenth of normal 
 vision in both eyes with glasses, one-half of the average 
 weekly wages of the injured person, but not more than ten 
 dollars nor less than four dollars a week, for a period of one 
 hundred weeks. 
 
 (6) For the loss by severance of either hand at or above 
 the wrist, or either foot at or above the ankle, or the reduc- 
 tion to one-tenth of normal vision in either eye with glasses, 
 one-half the average weekly wages of the injured person, 
 but not more than ten dollars nor less than four dollars a 
 week, for a period of fifty weeks. 
 
 (c) For the loss by severance at or above the second joint 
 of two or more fingers, including thumbs, or toes, one-half the 
 average weekly wages of the injured person, but not more 
 than ten dollars nor less than four dollars a week, for a period 
 of twenty-five weeks. 
 
 (d) For the loss by severance of at least one phalange of a 
 finger, thumb, or toe, one-half the average weekly wages of 
 the injured person, but not more than ten dollars nor less than 
 four dollars a week, for a period of twelve weeks. 
 
 SEC. 12. No savings or insurance of the injured employe", 
 independent of this act, shall be taken into consideration in 
 determining the compensation to be paid hereunder, nor 
 shall benefits derived from any other source than the associa- 
 tion be considered in fixing the compensation under this act. 
 
 SEC. 13. The compensation payable under this act in case 
 of the death of the injured employe shall be paid to his legal 
 representative; or, if he has no legal representative, to his 
 dependents; or, if he leaves no dependents, to the persons to 
 whom payment of the expenses for the last sickness and burial 
 are due. If the payment is made to the legal representative of 
 the deceased employe, it shall be paid by him to the de- 
 pendents or other persons entitled thereto under this act.
 
 940 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 SEC. 14. If an injured employe 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. 
 
 SEC. 15. 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 association or subscriber 
 as soon as practicable after the happening thereof, and unless 
 the claim for compensation with respect to such injury shall 
 have been made within six months after the occurrence of 
 the same; or, in case 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 in- 
 capacity. 
 
 SEC. 16. The said notice shall be in writing, and shall state 
 in ordinary language 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 repre- 
 sentative or by a person in his behalf or by a person to whom 
 payments may be due under this act or by a person in his 
 behalf. Any form of written communication signed by any 
 person who may give the notice as above provided, which 
 contains the information that the person has been so injured, 
 giving the time, place and cause of the injury, shall be con- 
 sidered a sufficient notice. 
 
 SEC. 17. The notice shall be served upon the association, 
 or an officer or agent thereof, or upon the subscriber, or upon 
 one subscriber, if there are more subscribers than one, or 
 upon any officer or agent of a corporation if the subscriber is 
 a corporation, by delivering the same to the person on whom 
 it is to be served, or leaving it at his residence or place of 
 business, or by sending it by registered mail addressed to the 
 person or corporation on whom it is to be served, at his last 
 known residence or place of business. 
 
 SEC. 18. A notice given under the provisions of this act
 
 TEXTS. OF COMPENSATION ACTS 941 
 
 shall not be held invalid or insufficient by reason of any in- 
 accuracy in stating the time, place or cause of the injury, 
 unless it is shown that it was the intention to mislead and the 
 association was in fact misled thereby. Want of notice shall 
 not be a bar to proceedings under this act, if it be shown that 
 the association, subscriber, or agent had knowledge of the 
 injury. 
 
 SEC. 19. After an employe has received an injury, and 
 from time to time thereafter during the continuance of his 
 disability he shall, if so requested by the association or sub- 
 scriber, submit himself to an examination by a physician or 
 surgeon authorized to practice medicine under the laws of 
 the commonwealth, furnished and paid for by the associa- 
 tion or subscriber. The employe shall have the right to have 
 a physician provided and paid for by himself present at the 
 examination. If he refuses to submit himself for the exami- 
 nation, or in any way obstructs the same, his right to com- 
 pensation shall be suspended, and his compensation during 
 the period of suspension may be forfeited. 
 
 SEC. 20. No agreement by an employe to waive his rights 
 to compensation under this act shall be valid. 
 
 SEC. 21. No payment under this act shall be assignable or 
 subject to attachment, or be liable in any way for any debts. 
 
 SEC. 22. Whenever any weekly payment has been con- 
 tinued for not less than six months, the liability therefor may 
 in unusual cases be redeemed by the payment of a lump sum 
 by agreement of the parties, subject to the approval of the 
 industrial accident board. 
 
 SEC. 23. The claim for compensation shall be in writing 
 and shall state the time, place, cause and nature of the in- 
 jury; it shall be signed by the person injured or by a person 
 in his behalf, or, in the event of his death, by his legal repre- 
 sentative or by a person in his behalf, or by a person to whom 
 payments may be due under this act or by a person in his 
 behalf, and shall be filed with the industrial accident board.
 
 942 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 The failure to make a claim within the period prescribed by 
 section fifteen shall not be a bar to the maintenance of pro- 
 ceedings under this act if it is found that it was occasioned 
 by mistake or other reasonable cause. 
 
 PART III 
 
 PROCEDURE 
 
 SECTION 1. There shall be an industrial accident board 
 consisting of five members, to be appointed by the governor, 
 by and with the advice and consent of the council, one of 
 whom shall be designated by the governor as chairman. 
 The term of office of members of this board shall be five 
 years, except than when first constituted one member shall 
 be appointed for one year, one for two years, one for three 
 years, one for four years, and one for five years. Thereafter 
 one member shall be appointed every year for the full term 
 of five years. 
 
 SEC. 2. The salaries and expenses of the board shall be 
 paid by the commonwealth. The salary of the chairman 
 shall be five thousand dollars a year, and the salary of the 
 other members shall be forty-five hundred dollars a year 
 each. The board may appoint a secretary at a salary of not 
 more than three thousand dollars a year, and may remove him. 
 It shall also be allowed an annual sum, not exceeding ten thou- 
 sand dollars, for clerical service, and traveling and other 
 necessary expenses. The board shall be provided with an 
 office in the state house or in some other suitable building in 
 the city of Boston, in which its records shall be kept. 
 
 SEC. 3. The board may make rules not inconsistent with 
 this act for carrying out the provisions of the act. Process 
 and procedure under this act shall be as summary as reason- 
 ably may be. The board or any member thereof shall have 
 the power to subpoena witnesses, administer oaths and to 
 examine such parts of the books and records of the parties 
 to a proceeding as relate to questions in dispute. The fees
 
 TEXTS OF COMPENSATION ACTS 943 
 
 Massachusetts 
 
 for attending as a witness before the industrial accident 
 board shall be one dollar and fifty cents a day; for attending 
 before an arbitration committee fifty cents a day; in both 
 cases five cents a mile for travel out and home. 
 
 The superior court shall have power to enforce by proper 
 proceedings the provisions of this section relating to the 
 attendance and testimony of witnesses and the examination 
 of books and records. 
 
 SEC. 4. If the association and the injured employe" reach 
 an agreement in regard to compensation under this act, a 
 memorandum of the agreement shall be filed with the in- 
 dustrial accident board and, if approved by it, thereupon the 
 memorandum shall for all purposes be enforceable under the 
 provisions of Part III, section eleven. Such agreements shall 
 be approved by said board only when the terms conform to 
 the provisions of this act. 
 
 SEC. 5. If the association and the injured employe fail to 
 reach an agreement in regard to compensation under this 
 act, either party may notify the industrial accident board 
 who shall thereupon call for the formation of a committee of 
 arbitration. The committee of arbitration shall consist of 
 three members, one of whom shall be a member of the in- 
 dustrial accident board and shall act as chairman. The other 
 two members shall be named, respectively, by the two 
 parties. If the subscriber has appeared under the provi- 
 sions of Part II, section three, the member named by the 
 association shall be subject to his approval. If a vacancy 
 occurs it shall be filled by the party whose representative is 
 unable to act. 
 
 The arbitrators appointed by the parties shall be sworn 
 by the chairman as follows : I do solemnly swear that 
 
 I will faithfully perform my duty as arbitrator and will not 
 be influenced in my decision by any feeling of friendship or 
 partiality toward either party. So help me God. 
 
 SEC. 6. It shall be the duty of the industrial accident
 
 944 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 board, upon notification that the parties have failed to reach 
 an agreement, to request both parties to appoint their re- 
 spective representatives on the committee of arbitration. 
 The board shall designate one of its members to act as chair- 
 man, and, if either party does not appoint its members on 
 this committee within seven days after notification, as above 
 provided, or after a vacancy has occurred, the board or any 
 member thereof shall fill the vacancy and notify the parties 
 to that effect. 
 
 SEC. 7. The committee on arbitration shall make such 
 inquiries and investigations as it shall deem necessary. The 
 hearings of the committee shall be held at the city or town 
 where the injury occurred, and the decision of the committee, 
 together with a statement of the evidence submitted before 
 it, its findings of fact, rulings of law and any other matters 
 pertinent to questions arising before it shall be filed with 
 the industrial accident board. Unless a claim for a review is 
 filed by either party within seven days, the decision shall be 
 enforceable under the provisions of Part III, section eleven. 
 
 SEC. 8. The industrial accident board or any member 
 thereof may appoint a duly qualified impartial physician to 
 examine the injured employe and to report. The fee for this 
 service shall be five dollars and traveling expenses, but the 
 board may allow additional reasonable amounts in extraor- 
 dinary cases. 
 
 SEC. 9. The arbitrators named by or for the parties to the 
 dispute shall each receive five dollars as a fee for his services, 
 but the industrial accident board or any member thereof 
 may allow additional reasonable amounts in extraordinary 
 cases. The fees shall be paid by the association, which shall 
 deduct an amount equal to one-third of the sum from any 
 compensation found due the employe 1 . 
 
 SEC. 10. If a claim for a review is filed, as provided in 
 Part III, section seven, the board shall hear the parties and 
 may hear evidence in regard to any or all matters pertinent
 
 TEXTS OF COMPENSATION ACTS 945 
 
 Massachusetts 
 
 thereto and may revise the decision of the committee in 
 whole or in part, or may refer the matter back to the com- 
 mittee for further findings of fact, and shall file its decision 
 with the records of the proceedings and notify the parties 
 thereof. No party shall as a matter of right be entitled to a 
 second hearing on any question of fact. 
 
 SEC. 11. Any party in interest may present certified 
 copies of an order or decision of the board, a decision of an 
 "arbitration committee from which no claim for review has 
 been filed within the time allowed therefor, or a memorandum 
 of agreement approved by the board, and all papers in con- 
 nection therewith, to the superior court for the county in 
 which the injury occurred or for the county of Suffolk, 
 whereupon said court shall render a decree in accordance 
 therewith and notify the parties. Such decree shall have 
 the same effect and all proceedings in relation thereto shall 
 thereafter be the same as though duly rendered in a suit 
 duly heard and determined by said court, except that there 
 shall be no appeal therefrom upon questions of fact, or 
 where the decree is based upon a decision of an arbitration 
 committee or a memorandum of agreement, and that there 
 shall be no appeal from a decree based upon an order or 
 decision of the board which has not been presented to the 
 court within ten days after the notice of the filing thereof by 
 the board. Upon the presentation to it of a certified copy 
 of a decision of the industrial accident board ending, di- 
 minishing or increasing a weekly payment under the pro- 
 visions of Part III, section twelve, the court shall revoke or 
 modify the decree to conform to such decision. 
 
 SEC. 12. Any weekly payment under this act may be re- 
 viewed by the industrial accident board at the request of the 
 association or of the employe; and on such review it may be 
 ended, diminished or increased, subject to the maximum and 
 minimum amounts above provided, if the board finds that 
 the condition of the employe warrants such action. 
 60
 
 946 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 SEC. 13. Fees of attorneys and physicians for services 
 under this act shall be subject to the approval of the indus- 
 trial accident board. 
 
 SEC. 14. If the committee of arbitration, industrial acci- 
 dent board, or any court before whom any proceedings are 
 brought under this act determines that such proceedings 
 have been brought, prosecuted, or defended without reason- 
 able ground, it shall assess the whole cost of the proceedings 
 upon the party who has so brought, prosecuted or defended 
 them. 
 
 SEC. 15. Where the injury for which compensation is 
 payable under this act was caused under circumstances 
 creating a legal liability in some person other than the sub- 
 scriber to pay damages in respect thereof, the employe may 
 at his option proceed either at law against that person to re- 
 cover damages, or against the association for compensation 
 under this act, but not against both; and if compensation be 
 paid under this act, the association may enforce in the name 
 of the employe, or in its own name and for its own benefit, the 
 liability of such other person. 
 
 SEC. 16. All questions arising under this act, if not settled 
 by agreement by the parties interested therein, shall, except 
 as otherwise herein provided, be determined by the industrial 
 accident board. The decisions of the industrial accident 
 board shall for all purposes be enforceable under the provi- 
 sions of Part III, section eleven. 
 
 SEC. 17. If a subscriber enters into a contract, written or 
 oral, with an independent contractor to do such subscriber's 
 work, or if such a contractor enters into a contract with a 
 subcontractor to do all or any part of the work comprised in 
 such contract with the subscriber, and the association would, 
 if such work were executed by employes immediately em- 
 ployed by the subscriber, be liable to pay compensation under 
 this act to those employe's, the association shall pay to such 
 employe's any compensation which would be payable to
 
 TEXTS OF COMPENSATION ACTS 947 
 
 Massachusetts 
 
 them under this act if the independent or subcontractors 
 were subscribers. The association, however, shall be en- 
 titled to recover indemnity from any other person who would 
 have been liable to such employes independently of this 
 section, and if the association has paid compensation under 
 the terms of this section, it may enforce in the name of the 
 employe", or in its own name and for the benefit of the asso- 
 ciation, the liability of such other person. This section shall 
 not apply to any contract of an independent or subcontractor 
 which is merely ancillary and incidental to, and is no part of 
 or process in, the trade or business carried on by the sub- 
 scriber, nor to any case where the injury occurred elsewhere 
 than on, in, or about the premises on which the contractor 
 has undertaken to execute the work for the subscriber or 
 which are under the control or management of the subscriber. 
 SEC. 18. Every employer shall hereafter keep a record of 
 all injuries, fatal or otherwise, received by his employes in 
 the course of their employment. Within forty-eight hours, 
 not counting Sundays and legal holidays, after the occurrence 
 of an accident resulting in personal injury a report thereof 
 shall be made in writing to the industrial accident board on 
 blanks to be procured from the board for the purpose. Upon 
 the termination of the disability of the injured employe or, 
 if such disability extends beyond a period of sixty days, at 
 the expiration of such period, the employer shall make a 
 supplemental report on blanks to be procured from the board 
 for that purpose. The said reports shall contain the name 
 and nature of the business of the employer, the location of 
 the establishment, the name, age, sex and occupation of the 
 injured employe, and shall state the date and hour of the 
 accident, the nature and cause of the injury, and such other 
 information as may be required by the board. 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 offence.
 
 948 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 PART IV 
 
 THE MASSACHUSETTS EMPLOYES* INSURANCE ASSOCIATION 
 
 SECTION 1. The Massachusetts Employes' Insurance As- 
 sociation is hereby created a body corporate with the powers 
 provided in this act, and with all the general corporate powers 
 incident thereto. 
 
 SEC. 2. The governor shall appoint a board of directors of 
 the association, consisting of fifteen members, who shall serve 
 for a term of one year, or until their successors are elected by 
 ballot by the subscribers at such time and for such term as 
 the by-laws shall provide. 
 
 SEC. 3. Until the first meeting of the subscribers the board 
 of directors shall have and exercise all the powers of the 
 subscribers, and may adopt by-laws not inconsistent with 
 the provisions of this act, which shall be in effect until 
 amended or repealed by the subscribers. 
 
 SEC. 4. The board of directors shall annually choose by 
 ballot a president, who shall be a member of the board, a 
 secretary, a treasurer, and such other officers as the by-laws 
 shall provide. 
 
 SEC. 5. Seven or more of the directors shall constitute a 
 quorum for the transaction of business. 
 
 Vacancies in any office may be filled in such manner as the 
 by-laws shall provide. 
 
 SEC. 6. Any employer in the commonwealth may become 
 a subscriber. 
 
 SEC. 7. The board of directors shall, within thirty days of 
 the subscription of twenty-five employers, call the first meet- 
 ing of the subscribers by a notice in writing mailed to each 
 subscriber at his place of 'business not less than ten days be- 
 fore the date fixed for the meeting. 
 
 SEC. 8. In any meeting of the subscribers each subscriber 
 shall be entitled to one vote, and if a subscriber has five 
 hundred employe's to whom the association is bound to pay
 
 TEXTS OF COMPENSATION ACTS 949 
 
 Massachusetts 
 
 compensation he shall be entitled to two votes, and he shall 
 be entitled to one additional vote for each additional five 
 hundred employes to whom the association is bound to pay 
 compensation, but no subscriber shall cast, by his own right 
 or by the right of proxy, more than twenty votes. 
 
 SEC. 9. No policy shall be issued by the association until 
 not less than one hundred employers have subscribed, who 
 have not less than ten thousand employes to whom the asso- 
 ciation may be bound to pay compensation. 
 
 SEC. 10. No policy shall be issued until a list of the sub- 
 scribers, with the number of employes of each, together with 
 such other information as the insurance commissioner may 
 require, shall have been filed at the insurance department, 
 nor until the president and secretary of the association shall 
 have certified under oath that every subscription in the list 
 so filed is genuine and made with an agreement by every 
 subscriber that he will take the policies subscribed for by 
 him within thirty days of the granting of a license to the 
 association by the insurance commissioner to issue policies. 
 
 SEC. 11. If the number of subscribers falls below one 
 hundred, or the number of employe's to whom the association 
 may be bound to pay compensation falls below ten thousand, 
 no further policies shall be issued until other employers have 
 subscribed who, together with existing subscribers, amount 
 to not less than one hundred who have not less than ten 
 thousand employes, said subscriptions to be subject to the 
 provisions contained in the preceding section. 
 
 SEC. 12. Upon the filing of the certificate provided for in 
 the two preceding sections the insurance commissioner shall 
 make such investigation as he may deem proper and, if his 
 findings warrant it, grant a license to the association to issue 
 policies. 
 
 SEC. 13. The board of directors shall distribute the sub- 
 scribers into groups in accordance with the nature of the 
 business and the degree of the risk of injury. Subscribers
 
 950 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 within each group shall annually pay in cash, or notes ab- 
 solutely payable, such premiums as may be required to pay 
 the compensation herein provided for the injuries which 
 may occur in that year. 
 
 SEC. 14. The association may in its by-laws and policies 
 fix the contingent mutual liability of the subscribers for the 
 payment of losses and expenses not provided for by its cash 
 funds; but such contingent liability of a subscriber shall not 
 be less than an amount equal to and in addition to the cash 
 premium. 
 
 SEC. 15. If the association is not possessed of cash funds 
 above its unearned premiums sufficient for the payment of 
 incurred losses and expenses, it shall make an assessment 
 for the amount needed to pay such losses and expenses upon 
 the subscribers liable to assessment therefor in proportion 
 to their several liability. Every subscriber shall pay his pro- 
 portional part of any assessments which may be laid by the 
 association, in accordance with law and his contract, on ac- 
 count of injuries sustained and expenses incurred while he is 
 a subscriber. 
 
 SEC. 16. The board of directors may, from time to time, 
 by vote fix and determine the amount to be paid as a dividend 
 upon policies expiring during each year after retaining suffi- 
 cient sums to pay all the compensation which may be payable 
 on account of injuries sustained and expenses incurred. All 
 premiums, assessments, and dividends shall be fixed by and 
 for groups as heretofore provided in accordance with the expe- 
 rience of each group, but all the funds of the association and 
 the contingent liability of all the subscribers shall be avail- 
 able for the payment of any claim against the association. 
 
 SEC. 17. Any proposed premium, assessment, dividend 
 or distribution of subscribers shall be filed with the insurance 
 department and shall not take effect until approved by the 
 insurance commissioner after such investigation as he may 
 deem necessary. (May withdraw approval. L. 1912, c. 666.)
 
 TEXTS OF COMPENSATION ACTS 951 
 
 Massachusetts 
 
 SEC. 18. The board of directors shall make and enforce 
 reasonable rules and regulations for the prevention of in- 
 juries on the premises of subscribers, and for this purpose 
 the inspectors of the association shall have free access to all 
 such premises during regular working hours. Any subscriber 
 or employe" aggrieved by any such rule or regulation may 
 petition the industrial accident board for a review, and it 
 may affirm, amend, or annul the rule or regulation. 
 
 SEC. 19. If any officer of the association shall falsely make 
 oath to any certificate required to be filed with the insurance 
 commissioner, he shall be guilty of perjury. 
 
 SEC. 20. Every subscriber shall, as soon as he secures a 
 policy, give notice, in writing or print, to all persons under 
 contract of hire with him that he has provided for payment 
 to injured employe's by the association. 
 
 SEC. 21. Every subscriber shall give notice in writing 
 or print to every person with whom he is about to enter 
 into a contract of hire that he has provided for payment 
 to injured employes by the association. If an employer 
 ceases to be a subscriber he shall, on or before the day on 
 which his policy expires, give notice thereof in writing or 
 print to all persons under contract with him. In case of the 
 renewal of the policy no notice shall be required under the 
 provisions of this act. He shall file a copy of said notice 
 with the Industrial Accident Board. The notices required 
 by this and the preceding section may be given in the man- 
 ner therein provided or in such other manner as may be ap- 
 proved by the Industrial Accident Board. 
 
 SEC. 22. If a subscriber, who has complied with all the 
 rules, regulations and demands of the association, is required 
 by any judgment of a court of law to pay to an employ 6 any 
 damages on account of personal injury sustained by such 
 employe" during the period of subscription, the association 
 shall pay to the subscriber the full amount of such judgment 
 and the cost assessed therewith, if the subscriber shall have
 
 952 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 given the association notice in writing of the bringing of the 
 action upon which the judgment was recovered and an oppor- 
 tunity to appear and defend the same. 
 
 SEC. 23. The provisions of chapter five hundred and 
 seventy-six of the acts of the year nineteen hundred and 
 seven and of acts in amendment thereof shall apply to the 
 association, so far as such provisions are pertinent and not 
 in conflict with the provisions of this act, except that the 
 corporate powers shall not expire because of failure to issue 
 policies or make insurance. 
 
 SEC. 24. The board of directors appointed by the governor 
 under the provisions of Part IV 3 section two, may incur such 
 expenses in the performance of its duties as shall be approved 
 by the governor and council. Such expenses shall be paid 
 from the treasury of the commonwealth and shall not exceed 
 in amount the sum of fifteen thousand dollars. 
 
 PART V 
 
 MISCELLANEOUS PROVISIONS 
 
 SECTION 1. If an employe of a subscriber files any claim 
 with or accepts any payment from the association on account 
 of personal injury, or makes any agreement, or submits any 
 question to arbitration, under this act, such action shall 
 constitute a release to the subscriber of all claims or demands 
 at law, if any, arising from the injury. 
 
 SEC. 2. The following words and phrases, as used in this 
 act, shall, unless a different meaning is plainly required by 
 the context, have the following meaning: "Employer" shall 
 include the legal representative of a deceased employer. 
 "Employe shall include every person in the service of an- 
 other under any contract of hire, express or implied, oral 
 or written, except one whose employment is but casual, or 
 is not in the usual course of the trade, business, profession 
 or occupation of his employer. Any reference to an employe 1
 
 TEXTS OF COMPENSATION ACTS 953 
 
 Massachusetts 
 
 who has been injured shall, when the employe" is dead, 
 also include his legal representatives, dependents and other 
 persons to whom compensation may be payable. "Depend- 
 ents " shall mean members of the employees family or 
 next of kin who were wholly or partly dependent upon the 
 earnings of the employe for support at the time of the injury. 
 "Average weekly wages" shall mean the earnings of the 
 injured employe during the period of twelve calendar months 
 immediately preceding the date of injury, divided by fifty- 
 two; but if the injured employe lost more than two weeks' 
 time during such period then the earnings for the remainder 
 of such twelve calendar months shall be divided by the 
 number of weeks remaining after the time so lost has been 
 deducted. Where, by reason of the shortness of the time 
 during which the employe" has been in the employment of 
 his employer, or the nature or terms of the employment, it 
 is impracticable to compute the average weekly wages, as 
 above defined, regard may be had to the average weekly 
 amount which, during the twelve months previous to the 
 injury, was being earned by a person in the same grade 
 employed at the same work by the same employer; or, if 
 there is no person so employed, by a person in the same 
 grade employed in the same class of employment and in 
 the same district. "Association" shall mean the Massa- 
 chusetts Employe's Insurance Association. "Subscriber" 
 shall mean an employer who has become a member of the as- 
 sociation by paying a year's premium in advance and re- 
 ceiving the receipt of the association therefor, provided that 
 the association holds a license issued by the insurance com- 
 missioner as provided in Part IV, section twelve. 
 
 SEC. 3. Any liability insurance company authorized to 
 do business within this commonwealth shall have the same 
 right as the association to insure the liability to pay the 
 compensation provided for by Part II of this act, and when 
 such liability company issues a policy conditioned to pay
 
 954 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Massachusetts 
 
 such compensation the holder of such policy shall be re- 
 garded as a subscriber so far as applicable within the mean- 
 ing of this act, and when any such company insures such 
 payment of compensation it shall be subject to the pro- 
 visions of Parts I, II, III and V and of section twenty-two 
 of Part IV of this act, and shall file with the Insurance 
 Department its classifications of risks and premiums re- 
 lating thereto and any subsequent proposed classifications 
 or premiums, none of which shall take effect until the In- 
 surance Commissioner has approved the same as adequate 
 for the risks to which they respectively apply. 
 
 SEC. 4. Sections one hundred and thirty-six to one hundred 
 and thirty-nine, inclusive, of chapter five hundred and 
 fourteen of the acts of the year nineteen hundred and nine 
 are hereby repealed. 
 
 SEC. 5. The provisions of this act shall not apply to in- 
 juries sustained prior to the taking effect thereof. 
 
 SEC. 6. Part IV of this act shall take effect on the first 
 day of January, nineteen hundred and twelve; section one 
 to three inclusive of Part III shall take effect on the tenth 
 day of May, nineteen hundred and twelve; the remainder 
 thereof shall take effect on the first day of July, nineteen 
 hundred and twelve. 
 
 HOUSE OF REPRESENTATIVES. 
 
 July 28, 1911. 
 Passed to be enacted. 
 
 JOSEPH WALKER, 
 
 Speaker. 
 
 In Senate, July 28, 1911. 
 Passed to be enacted. 
 
 ALLEN T. TREADWAY, 
 
 President. 
 July 28, 1911. 
 
 Approved, 
 
 EUGENE N. FOSS.
 
 TEXTS OF COMPENSATION ACTS 955 
 
 Michigan 
 
 MICHIGAN 
 
 (L. 1912, No. 3) 
 
 An act to promote the welfare of the people of this State, 
 relating to the liability of employers for injuries or death 
 sustained by their employes, providing compensation 
 for the accidental injury to or death of employes and 
 methods for the payment of the same, establishing an 
 industrial accident board, defining its powers, providing 
 for a review of its awards, making an appropriation to 
 carry out the provisions of this act, and restricting the 
 right to compensation or damages in such cases to such 
 as are provided by this act. 
 The people of the State of Michigan enact: 
 
 PART I 
 
 MODIFICATION OF REMEDIES 
 
 SECTION 1. In an action to recover damages for personal 
 injury sustained by an employe" in the course of his employ- 
 ment, or for death resulting from personal injuries so sus- 
 tained, it shall not be a defense: 
 
 (a) That the employ^ was negligent, unless and except 
 it shall appear that such negligence was willful; 
 
 (6) 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 out of his employment, or 
 arising from the failure of the employer to provide and 
 maintain safe premises and suitable appliances. 
 
 SEC. 2. The provisions of section one shall not apply to 
 actions to recover damages for personal injuries sustained 
 by household domestic servants and farm laborers. 
 
 SEC. 3. The provisions of section one shall not apply to 
 actions to recover damages for the death of, or for personal
 
 956 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 injuries sustained by employes of any employer who has 
 elected, with the approval of the industrial accident board 
 hereinafter created, to pay compensation in the manner 
 and to the extent hereinafter provided. 
 
 SEC. 4. Any employer who has elected, with the approval 
 of the industrial accident board hereinafter created, to pay 
 compensation as hereinafter provided, shall not be subject 
 to the provisions of section one; nor shall such employer 
 be subject to any other liability whatsoever, save as herein 
 provided for the death of or personal injury to any employ 6, 
 for which death or injury compensation is recoverable under 
 this act, except as to employes who have elected in the man- 
 ner hereinafter provided not to become subject to the pro- 
 visions of this act. 
 
 SEC. 5. The following shall constitute employers subject 
 to the provisions of this act : 
 
 1. The State and each county, city, township, incor- 
 porated village and school district therein; 
 
 2. Every person, firm and private corporation, including 
 any public service corporation, who has any person in service 
 under any contract of hire, express or implied, oral or written, 
 and who, at or prior to the time of the accident to the em- 
 ploye" for which compensation under this act may be claimed, 
 shall in the manner provided in the next section, have 
 elected to become subject to the provisions of this act, and 
 who shall not, prior to such accident, have effected a with- 
 drawal of such election, in the manner provided in the next 
 section. 
 
 SEC. 6. Such election on the part of the employers men- 
 tioned in subdivision two of the preceding section, shall 
 be made by filing with the industrial accident board here- 
 inafter provided for, a written statement to the effect that 
 such employer accepts the provisions of this act, and that 
 he adopts, subject to the approval of said board, one of the 
 four methods provided for the payment of the compensation
 
 TEXTS OF COMPENSATION ACTS 957 
 
 Michigan 
 
 hereinafter specified. The filing of such statement and the 
 approval of said board shall operate, within the meaning of 
 the preceding section, to subject such employer to the pro- 
 visions of this act and all acts amendatory thereof for the 
 term of one year from the date of the filing of such statement, 
 and thereafter, without further act on his part, for successive 
 terms of one year each, unless such employer shall, at least 
 thirty days prior to the expiration of such first or any suc- 
 ceeding year, file in the office of said board a notice in writing 
 to the effect that he desires to withdraw his election to be 
 subject to the provisions of this act: Provided, however, 
 That such employer so electing to become subject to the 
 provisions of this act shall, within ten days after the appro- 
 val by said board of his election filed as aforesaid, post in a 
 conspicuous place in his plant, shop, minor place of work, 
 or if such employer be a transportation company, at its 
 several stations and docks, notice in the form as prescribed 
 and furnished by the industrial accident board to the effect 
 that he accepts and will be bound by the provisions of this 
 a 
 
 SEC. 7. The term "employe" as used in this act shall be 
 construed to mean: 
 
 1. Every person in the service of the State, or of any 
 county, city, township, incorporated village or school dis- 
 trict therein, under any appointment, or contract of hire, 
 express or implied, oral or written, except any official of 
 the State, or of any county, city, township, incorporated 
 village or school district therein: Provided, That one em- 
 ployed by a contractor who has contracted with a county, 
 city, township, incorporated village, school district or the 
 State, through its representatives, shall not be considered 
 an employe" of the State, county, city, township, incorporated 
 village or school district which made the contract; 
 
 2. Every person in the service of another under any con- 
 tract of hire, express or implied, oral or written, including
 
 958 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 aliens, and also including minors who are legally permitted 
 to work under the laws of the State who, for the purposes 
 of this act, shall be considered the same and have the same 
 power to contract as adult employes, but not including any 
 person whose employment is but casual or is not in the 
 usual course of the trade, business, profession or occupa- 
 tion of his employer, 
 
 SEC. 8. Any employe" as denned in subdivision one of 
 the preceding section shall be subject to the provisions of 
 this act and of any act amendatory thereof. Any employe 
 as defined in subdivision two of the preceding section shall 
 be deemed to have accepted and shall be subject to the 
 provisions of this act and of any act amendatory thereof 
 if, at the time of the accident upon which liability is claimed : 
 
 1. The employer charged with such liability is subject 
 to the provisions of this act, whether the employe has actual 
 notice thereof or not; and 
 
 2. Such employe shall not, at the time of entering into 
 his contract of hire, express or implied, with such employer, 
 have given to his employer notice in writing that he elects 
 not to be subject to the provisions of this act; or, in the 
 event that such contract of hire was made before such 
 employer became subject to the provisions of this act, such 
 employe" shall have given to his employer notice in writing 
 that he elects not to be subject to such provisions, or with- 
 out giving either of such notices shall have remained in 
 the service of such employer for thirty days after the em- 
 ployer has filed with said board an election to be subject 
 to the terms of this act. An employe" who has given notice 
 to his employer in writing as aforesaid that he elects not 
 to be subject to the provisions of this act, may waive such 
 claim by a notice in writing, which shall take effect five days 
 after it is delivered to the employer or his agent.
 
 TEXTS OF COMPENSATION ACTS 959 
 
 Michigan 
 
 PART II 
 
 COMPENSATION 
 
 SECTION 1. If an employe" who has not given notice of his 
 election not to be subject to the provisions of this act, as pro- 
 vided in part one, section eight, or who has given such notice 
 and has waived the same as hereinbefore provided, receives 
 a personal injury arising out of and in the course of his em- 
 ployment by an employer who is at the time of such injury 
 subject to the provisions of this act, he shall be paid com- 
 pensation in the manner and to the extent hereinafter pro- 
 vided, or in case of his death resulting from such injuries 
 such compensation shall be paid to his dependents as herein- 
 after defined. 
 
 SEC. 2. If the employe" is injured by reason of his intentional 
 and willful misconduct, he shall not receive compensation 
 under the provisions of this act. 
 
 SEC. 3. No compensation shall be paid under this act 
 for any injury which does not incapacitate the employe" 
 for a period of at least two weeks from earning full wages, 
 but if incapacity extends beyond the period of two weeks, 
 compensation shall begin on the fifteenth day after the injury: 
 Provided, However, That if such disability continues for 
 eight weeks or longer, such compensation shall be computed 
 from the date of the injury. 
 
 SEC. 4. During the first three weeks after the injury the 
 employer shall furnish, or cause to be furnished, reasonable 
 medical and hospital services and medicines when they 
 are needed. 
 
 SEC. 5. If death results from the injury, the employer 
 shall pay, or cause to be paid, subject, however, to the pro- 
 visions of section twelve hereof, in one of the methods here- 
 inafter provided, to the dependents of the employe", wholly 
 dependent upon his earnings for support at the time of the 
 injury, a weekly payment equal to one-half his average
 
 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 weekly wages, but not more than ten dollars nor less than 
 four dollars a week for a period of three hundred weeks from 
 the date of the injury. If the employe" leaves dependents 
 only partly dependent upon his earnings for support at the 
 time of his injury, the weekly compensation to be paid as 
 aforesaid shall be equal to the same proportion of the weekly 
 payments for the benefit of persons wholly dependent as the 
 amount contributed by the employe* to such partial de- 
 pendents bears to the annual earnings of the deceased at the 
 time of his injury. When weekly payments have been made 
 to an injured employ 6 before his death the compensation 
 to dependents shall begin from the date of the last of such 
 payments, but shall not continue more than three hundred 
 weeks from the date of the injury. 
 
 SEC. 6. The following persons shall be conclusively pre- 
 sumed to be wholly dependent for support upon a deceased 
 employe": 
 
 (a) A wife upon a husband with whom she lives at the 
 time of his death ; 
 
 (6) A husband upon a wife with whom he lives 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 parent with whom he is or they are living 
 at the time of the death of such parent, there being no surviv- 
 ing parent. In case there is more than one child thus depend- 
 ent, the death benefit shall be divided equally among them. 
 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
 
 TEXTS OF COMPENSATION ACTS 961 
 
 Michigan 
 
 according to the relative extent of their dependency. No 
 person shall be considered a dependent, unless a member 
 of the family of the deceased employe, or bears to him the 
 relation of husband or widow, or lineal descendant, or ances- 
 tor, or brother or sister. 
 
 SEC. 7. 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 their right to any 
 death benefit shall become fixed as of such time, irrespective 
 of any subsequent change in conditons ; and the death benefit 
 shall be directly recoverable by and payable to the dependent 
 or dependents entitled thereto, or their legal guardians or 
 trustees. In case of the death of one such dependent his 
 proportion of such compensation shall be payable to the 
 surviving dependents pro rata. Upon the death of all such 
 dependents compensation shall cease. No person shall be 
 excluded as a dependent who is a non-resident alien. No 
 dependent of an injured employe shall be deemed, during 
 the life of such employe, a party in interest to any proceeding 
 by him for the enforcement of collection of any claim for 
 compensation, nor as respects the compromise thereof by 
 such employe". 
 
 SEC. 8. If the employe leaves no dependents the employer 
 shall pay, or cause to be paid as hereinafter provided, the 
 reasonable expense of his last sickness and burying, which 
 shall not exceed two hundred dollars. 
 
 SEC. 9. While the incapacity for work resulting from the 
 injury is total, the employer shall pay, or cause to be paid 
 as hereinafter provided, to the injured employ 6 a weekly com- 
 pensation equal to one-half his average weekly wages, but 
 not more than ten dollars nor less than four dollars a week ; 
 and in no case shall the period covered by such compensa- 
 tion be greater than five hundred weeks, nor shall the total 
 amount of all compensation exceed four thousand dollars. 
 
 SEC. 10. While the incapacity for work resulting from the 
 61
 
 962 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 injury is partial, the employer shall pay, or cause to be paid 
 as hereinafter provided, to the injured employe a weekly 
 compensation equal to one-half the difference between his 
 average weekly wages before the injury and the average 
 weekly wages which he is able to earn thereafter, but not 
 more than ten dollars a week; and in no case shall the period 
 covered by such compensation be greater than three hundred 
 weeks from the date of the injury. In cases included by the 
 following schedule the disability in each such case shall be 
 deemed to continue for the period specified, and the compen- 
 sation so paid for such injury shall be as specified therein, 
 to-wit : 
 
 For the loss of a thumb, fifty per centum of the average 
 weekly wages during sixty weeks; 
 
 For the loss of a first finger, commonly called index finger, 
 fifty per centum of average weekly wages during thirty-five 
 weeks; 
 
 For the loss of a second finger, fifty per centum of average 
 weekly wages during thirty weeks; 
 
 For the loss of a third finger, fifty per centum of average 
 weekly wages during twenty weeks; 
 
 For the loss of a fourth finger, commonly called little 
 finger, fifty per centum of average weekly wages during 
 fifteen weeks; 
 
 The loss of the first phalange of the thumb, or of any finger, 
 shall be considered to be equal to the loss of one-half of such 
 thumb, or finger, and compensation shall be one-half the 
 amounts above specified; 
 
 The loss of more than one phalange shall be considered 
 as the loss of the entire finger or thumb : Provided, however, 
 That in no case shall the amount received for more than one 
 finger exceed the amount provided in this schedule for the 
 loss of a hand; 
 
 For the loss of a great toe, fifty per centum of average 
 weekly wages during thirty weeks;
 
 TEXTS OF COMPENSATION ACTS 963 
 
 Michigan 
 
 For the loss of one of the toes other than a great toe, 
 fifty per centum of average weekly wages during ten weeks; 
 
 The loss of the first phalange of any toe shall be considered 
 to be equal to the loss of one-half of such toe, and compensa- 
 tion shall be one-half of the amount above specified; 
 
 The loss of more than one phalange shall be considered as 
 the loss of the entire toe; 
 
 For the loss of a hand, fifty per centum of average weekly 
 wages during one hundred and fifty weeks ; 
 
 For the loss of an arm, fifty per centum of average weekly 
 wages during two hundred weeks; 
 
 For the loss of a foot, fifty per centum of average weekly 
 wages during one hundred and twenty-five weeks; 
 
 For the loss of a leg, fifty per centum of average weekly 
 wages during one hundred and seventy-five weeks; 
 
 For the loss of an eye, fifty per centum of average weekly 
 wages during one hundred weeks; 
 
 The loss of both hands, or both arms, or both feet, or 
 both legs, or both eyes, or of any two thereof, shall constitute 
 total and permanent disability, to be compensated according 
 to the provisions of section nine. 
 
 The amounts specified in this clause are all subject to the 
 same limitations as to maximum and minimum as above 
 stated. 
 
 SEC. 11. The term "average weekly wages" as used in 
 this act is defined to be one fifty-second part of the average 
 annual earnings of the employe*. If the injured employe has 
 not worked in the employment in which he was working at 
 the time of the accident, whether for the employer or not, 
 during substantially the whole of the year immediately pre- 
 ceding his injury, his average annual earnings shall consist 
 of three hundred times the average daily wage or salary 
 which he has earned in such employment during the days 
 when so employed. If the injured employe has not worked 
 in such employment during substantially the whole of such
 
 964 
 
 Michigan 
 
 immediately preceding year, his average annual earnings 
 shall consist of three hundred times the average daily wage 
 or salary which an employe of the same class working sub- 
 stantially the whole of such immediately preceding year in 
 the same or a similar employment in the same or a neighbor- 
 ing place, shall have earned in such employment during the 
 days when so employed. In cases where the foregoing methods 
 of arriving at the average annual earnings of the injured 
 employe cannot reasonably and fairly be applied, such annual 
 earnings shall be taken at such sum as, having regard to the 
 previous earnings of the injured employe", and of other em- 
 ployes of the same or most similar class, working in the 
 same or most similar employment, in the same or neighbor- 
 ing locality, shall reasonably represent the annual earning 
 capacity of the injured employe" at the time of the accident 
 in the employment in which he was working at such time. 
 The fact that an employe has suffered a previous disability, 
 or received compensation therefor, shall not preclude com- 
 pensation for a later injury, or for death, but in determining 
 compensation for the later injury, or death, his average 
 annual earnings shall be such sum as will reasonably repre- 
 sent his annual earning capacity at the time of the later 
 injury in the employment in which he was working at such 
 time, and shall be arrived at according to and subject to the 
 limitations of the provisions of this section. The weekly 
 loss in wages referred to in this act shall consist of such per- 
 centage of the average weekly earnings of the injured employe* 
 computed according to the provisions of this section, as shall 
 fairly represent the proportionate extent of the impairment 
 of his earning capacity in the employment in which he wasi 
 working at the time of the accident, the same to be fixed 
 as of the time of the accident, but to be determined in view 
 of the nature and extent of the injury. 
 
 SEC. 12. The death of the injured employe prior to the 
 expiration of the period within which he would receive such
 
 TEXTS OF COMPENSATION ACTS 965 
 
 Michigan 
 
 weekly payments shall be deemed to end such disability, 
 and all liability for the remainder of such payments which 
 he would have received in case he had lived shall be termi- 
 nated, but the employer shall thereupon be liable for the 
 following death benefits in lieu of any further disability 
 indemnity : 
 
 If the injury so received by such employe" was the proxi- 
 mate 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 employe, 
 to make the total compensation for the injury and death 
 exclusive of medical and hospital services and medicines 
 furnished as provided in section four hereof, equal to the 
 full amount which such dependents would have been en- 
 titled to receive under the provisions of section five hereof 
 in case the accident had resulted in immediate death, and 
 such benefits shall be payable in weekly installments in the 
 same manner and subject to the same terms and conditions 
 in all respects as payments made under the provisions of 
 said section five. 
 
 SEC. 13. No savings or insurance of the injured employ 6, 
 nor any contribution made by him to any benefit fund or 
 protective association independent of this act, shall be 
 taken into consideration 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. 
 
 SEC. 14. If an injured employe 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.
 
 966 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 SEC. 15. 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 three months 
 after the happening thereof, and unless the claim for com- 
 pensation with respect to such injury shall have been made 
 within six months after the occurrence of the same; or, 
 in case 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. 
 
 SEC. 16. The said notice shall be in writing, and shall 
 state in ordinary language the time, place and cause of the 
 injury; and shall be signed by the person injured, or by a per- 
 son in his behalf, or, in the event of his death, by his de- 
 pendents or by a person in their behalf. 
 
 SEC. 17. The notice shall be served upon the employer 
 or an agent thereof. Such service may be made by deliver- 
 ing said notice to the person on whom it is to be served, or 
 leaving it at his residence or place of business, or by sending 
 it by registered mail addressed to the person or corporation 
 on whom it is to be served, at his last known residence or 
 place of business. 
 
 SEC. 18. A notice given under the provisions of this act 
 shall not be held invalid or insufficient by reason of any in- 
 accuracy 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, or the commissioner of insurance, as the case may 
 be, was in fact misled thereby. Want of such written 
 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. 
 
 SEC. 19. After an employe" has given notice of an injury, 
 as provided by this act, and from time to time thereafter 
 during the continuance of his disability, he shall, if so re- 
 quested by the employer, or the insurance company carrying
 
 TEXTS OF COMPENSATION ACTS 967 
 
 Michigan 
 
 such risk, or the commissioner of insurance, as the case may 
 be, submit himself to an examination by a physician or 
 surgeon authorized to practice medicine under the laws of 
 the State, furnished and paid for by the employer, or the 
 insurance company carrying such risk, or the commissioner 
 of insurance, as the case may be. The employe shall have 
 the right to have a physician provided and paid for by him- 
 self present at the examination. If he refuses to submit 
 himself for the examination, or in any way obstructs the 
 same, his right to compensation shall be suspended, and his 
 compensation during the period of suspension may be for- 
 feited. Any physician who shall make or be present at 
 any such examination may be required to testify under 
 oath as to the results thereof. 
 
 SEC. 20. No agreement by an employe to waive his rights 
 to compensation under this act shall be valid. 
 
 SEC. 21. No payment under this act shall be assignable 
 or subject to attachment or garnishment, or be held liable 
 in any way for any debts. In case of insolvency every lia- 
 bility for compensation under this act shall constitute a first 
 lien upon all the property of the employer liable therefor, 
 paramount to all other claims or liens except for wages and 
 taxes, and such liens shall be enforced by order of the court. 
 
 SEC. 22. Whenever any weekly payment has been con- 
 tinued for not less than six months, the liability therefor 
 may be redeemed by the payment of a lump sum by agree- 
 ment of the parties, subject to the approval of the indus- 
 trial accident board, and said board may at any time direct 
 in any case, if special circumstances be found which in its 
 judgment require the same, that the deferred payments 
 be commuted on the present worth thereof at five per cent 
 per annum to one or more lump sum payments, and that 
 such payments shall be made by the employer or the in- 
 surance company carrying N such risk, or commissioner of 
 insurance, as the case may be.
 
 968 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 PART III 
 
 PROCEDURE 
 
 SECTION 1. There is hereby created a board which shall 
 be known as the Industrial Accident Board, consisting of 
 three members to be appointed by the governor, by and 
 with the consent of the senate, one of whom shall be desig- 
 nated by the governor as chairman. Appointments to fill 
 vacancies may be made during recesses of the senate, but 
 shall be subject to confirmation by the senate at the next 
 ensuing session of the legislature. The term of office of 
 members of this board shall be six years, except that when 
 first constituted one member shall be appointed for two 
 years, one for four years, and one for six years. Thereafter 
 one member shall be appointed every second year for the full 
 term of six years. No more than two members of this board 
 shall belong to the same political party. 
 
 SEC. 2. The salary of each of the members so appointed 
 by the governor shall be three thousand five hundred dollars 
 per year. The board may appoint a secretary at a salary 
 of not more than two thousand five hundred dollars a year, 
 and may remove him. The board shall be provided with 
 an office in the capitol, or in some other suitable building 
 in the city of Lansing, in which its records shall be kept, and 
 it shall also be provided with necessary office furniture, sta- 
 tionery and other supplies. It shall provide itself with a 
 seal for the authentication of its orders, awards and pro- 
 ceedings, upon which shall be inscribed the words "Indus- 
 trial Accident Board Michigan Seal." It shall employ 
 such assistants and clerical help as it may deem necessary 
 and fix the compensation of all persons so employed: Pro- 
 vided, That the average compensation paid to such employe 
 si uill not exceed one thousand dollars per annum for each 
 person employed, and all such clerical assistants shall be 
 subject to existing laws regulating the grading and corn pen-
 
 TEXTS OF COMPENSATION ACTS 969 
 
 Michigan 
 
 sation of department clerks. The members of the board 
 and its assistants shall be entitled to receive from the State 
 their actual and necessary expenses while traveling on the 
 business of the board; but such expenses shall be sworn to 
 by the person who incurred the same, and be approved by 
 the chairman of the board before payment is made. 
 
 All such salaries and expenses when audited and allowed 
 by the board of state auditors, shall be paid by the state 
 treasurer out of the general fund, upon warrant of the 
 auditor general. 
 
 SEC. 3. The board may make rules not inconsistent with 
 this act for carrying out the provisions of the act. Process 
 and procedure under this act shall be as summary as reason- 
 ably may be. The board or any member thereof shall have 
 the power to administer oaths, subpcena witnesses and to 
 examine such parts of the books and records of the parties 
 to a proceeding as relate to questions in dispute. 
 
 SEC. 4. The board shall cause to be printed and furnish 
 free of charge to any employer or employe such blank forms 
 as it shall deem requisite to facilitate or promote the efficient 
 administration of this act; it shall provide a proper record 
 book in which shall be entered and indexed the name of any 
 employer who shall file a statement of election under this 
 act, and the date of the filing thereof and its approval by 
 such board, and a separate book in which shall be entered 
 and indexed the name of every employer who shall file his 
 notice of withdrawal of said election, and the date of the filing 
 thereof; and books in which shall be recorded all orders and 
 awards made by the board; and such other books or records 
 as it shall deem required by the proper and efficient adminis- 
 tration of this act; all such records to be kept in the office 
 of the board. Upon the filing of a statement of election 
 by an employer to become subject to the provisions of this 
 act, the board shall forthwith cause such notice of the fact 
 to be given by requiring said employer to post such notice
 
 970 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 as hereinbefore provided; and the board shall likewise cause 
 notice to be given of the filing of any withdrawal of such 
 election; but notwithstanding the failure to give, or the 
 insufficiency of, any such notice, knowledge of all filed state- 
 ments of election and notices of withdrawal of election, and 
 of the time of the filing of the same, shall conclusively be 
 imputed to all employes. 
 
 SEC. 5. If the employer, or the insurance company carry- 
 ing such risk, or commissioner of insurance, as the case may 
 be, and the injured employe reach an agreement in regard 
 to compensation under this act, a memorandum of such 
 agreement shall be filed with the industrial accident board, 
 and, if approved by it, shall be deemed final and binding 
 upon the parties thereto. Such agreements shall be approved 
 by said board only when the terms conform to the provi- 
 sions of this act. 
 
 SEC. 6. If the employer, or the insurance company carry- 
 ing such risk, or the commissioner of insurance, as the case 
 may be, and the employe fail to reach an agreement in re- 
 gard to compensation under this act, either party may 
 notify the industrial accident board, who shall thereupon 
 call for the formation of a committee of arbitration. The 
 committee of arbitration shall consist of three members, 
 one of whom shall be a member of the industrial accident 
 board, and shall act as chairman. The other two members 
 shall be named respectively by the two parties. 
 
 SEC. 7. It shall be the duty of the industrial accident 
 board, upon notification that the parties have failed to 
 reach an agreement, to request both parties to appoint their 
 respective representatives on the committee of arbitration. 
 The board shall designate one of its members to act as chair- 
 man, and, if either party does not appoint its member on 
 this committee within seven days after notification as above 
 provided, the board or any member thereof shall fill the 
 vacancy and notify the parties to that effect.
 
 TEXTS OF COMPENSATION ACTS 971 
 
 Michigan 
 
 SEC. 8. The committee of arbitration shall make such 
 inquiries and investigations as it shall deem necessary. The 
 hearings of the committee shall be held at the locality where 
 the injury occurred, and the decision of the committee shall 
 be filed with the industrial accident board. Unless a claim 
 for a reivew is filed by either party within seven days, the 
 decision shall stand as the decision of the industrial accident 
 board: Provided, That said industrial accident board may, 
 for sufficient cause shown, grant further time in which to 
 claim such review. 
 
 SEC. 9. The industrial board or any member thereof 
 may appoint a duly qualified impartial physician to ex- 
 amine the injured employe and to report. The fee for this 
 service shall be five dollars and traveling expenses, but the 
 board may allow additional reasonable amounts in extraordi- 
 nary cases. 
 
 SEC. 10. The arbitrators named by or for the parties to the 
 dispute shall each receive five dollars a day for his services, 
 but the industrial accident board or any member thereof may 
 allow additional reasonable amounts in extraordinary cases. 
 The fees of such arbitrators and other costs of such arbitra- 
 tion, not exceeding, however, the taxable costs allowed in 
 suits at law in the circuit courts of this State, shall be fixed 
 by the board and paid by the State as the other expenses of 
 the board are paid. The fees and the payment thereof ot 
 all attorneys and physicians for services under this act 
 shall be subject to the approval of the industrial accident 
 board. 
 
 SEC. 11. If a claim for review is filed, as provided in part 
 three, section eight, the industrial accident board shall 
 promptly review the decision of the committee of arbitra- 
 tion and such records as may have been kept of its hearings, 
 and shall also if desired hear the parties, together with such 
 additional evidence as they may wish to submit, and file 
 its decision therein with the records of such proceedings.
 
 972 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 Such review and hearing may be held in its office at Lansing 
 or elsewhere as the board shall deem advisable. 
 
 SEC. 12. The findings of fact made by said industrial 
 accident board acting within its powers, shall, in the absence 
 of fraud, be conclusive, but the supreme court shall have 
 power to review questions of law involved in any final de- 
 cision or determination of said industrial accident board: 
 Provided, That application is made by the aggrieved party 
 within thirty days after such determination by certiorari, 
 mandamus or by any other method permissible under the 
 rules and practice of said court or the laws of this State, 
 and to make such further orders in respect thereto as justice 
 may require. 
 
 SEC. 13. Either party may present a certified copy of 
 the decision of such industrial accident board approving 
 agreements of settlement as provided in part three, section 
 five hereof, or of the decision of such committee of arbitra- 
 tion when no claim for review is made as provided in part 
 three, section eight, or of the decision of such industrial 
 accident board when a claim for review is filed as provided 
 in part three, section eleven, providing for payment of com- 
 pensation under this act, to the circuit court for the county 
 in which such accident occurred, whereupon said court shall, 
 without notice, render a judgment in accordance therewith 
 against said employer and also against any insurance com- 
 pany carrying such risk under the provisions of this act; 
 which judgment, until and unless set aside shall have the 
 same effect as though duly rendered in an action duly tried 
 and determined by said court, and shall, with like effect, 
 be entered and docketed. 
 
 SEC. 14. Any weekly payment under this act may be re- 
 viewed by the industrial accident board at the request of 
 the employer or the insurance company carrying such risks, 
 or the commissioner of insurance as the case may be, or the 
 employe; and on such review it may be ended, diminished
 
 TEXTS OF COMPENSATION ACTS 973 
 
 Michigan 
 
 or increased, subject to the maximum and minimum amounts 
 above provided, if the board finds that the facts warrant 
 such action. 
 
 SEC. 15. Where the injury for which compensation is pay- 
 able under this act was caused under circumstances creating a 
 legal liability in some person other than the employer to pay 
 damages in respect thereof, the employ^ may at his option 
 proceed either at law against that person to recover damages, 
 or against the employer for compensation under this act, but 
 not against both, and if compensation be paid under this act 
 the employer may enforce for his benefit or for that of the in- 
 surance company carrying such risk, or the commissioner of 
 insurance, as the case may be, the liability of such other 
 person. 
 
 SEC. 16. All questions arising under this act, if not settled 
 by agreement by the parties interested therein, shall, except 
 as otherwise herein provided, be determined by the indus- 
 trial accident board. 
 
 SEC. 17. Every employer shall hereafter keep a record 
 of all injuries, fatal or otherwise, received by his employes 
 in the course of their employment. Within ten days after 
 the occurrence of an accident resulting in personal injury 
 a report thereof shall be made in writing to the industrial 
 accident board on blanks to be procured from the board 
 for that purpose. 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 informa- 
 tion as may be required by the board. Any employer who 
 refuses or neglects to make the report required by this sec- 
 tion shall be punished by a fine of not more than fifty dol- 
 lars for each offense.
 
 974 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 PART IV 
 
 METHOD OF PAYMENT 
 
 SECTION 1. Every employer filing his election to become 
 subject to the provisions of this act, as hereinbefore set forth, 
 shall have the right to specify at the time of doing so, subject 
 to the approval of said industrial accident board, which of 
 the following methods for the payment of such compensation 
 he desires to adopt, to-wit : 
 
 First. Upon furnishing satisfactory proof to said board 
 of his solvency and financial ability to pay the compensation 
 and benefits hereinbefore provided for, to make such pay- 
 ments directly to his employes, as they may become entitled 
 to receive the same under the terms and conditions of this 
 act; or 
 
 Second. To insure against such liability in any employers' 
 liability company authorized to take such risks in the State 
 of Michigan; or 
 
 Third. To insure against such liability in any employers' 
 insurance association organized under the laws of the State 
 of Michigan; or 
 
 Fourth. To request the commissioner of insurance of the 
 State of Michigan to assume the administration of the dis- 
 bursement of such compensation exclusive of that provided 
 for in part two, section four herein, and the collection of the 
 premiums and assessments necessary to pay the same, as 
 provided in part five hereof. Said board, however, shall 
 have the right, from time to time to review and alter its 
 decision in approving the election of such employer to adopt 
 any one of the foregoing methods of payment, if in its judg- 
 ment such action is necessary or desirable to secure and safe- 
 guard such payments to employe's. 
 
 SEC. 2. Nothing herein shall affect any existing contract 
 for employers' liability insurance or affect the organization
 
 TEXTS OF COMPENSATION ACTS 975 
 
 Michigan 
 
 of any mutual or other insurance company, or any arrange- 
 ment now existing between employers and employes, provid- 
 ing for the payment to such employes, their families, depend- 
 ents or representatives, sick, accident or death benefits, 
 in addition to the compensation provided for by this act. 
 But liability for compensation under this act shall not be 
 reduced or affected by any insurance, contribution or other 
 benefit whatsoever, due to or received by the person entitled 
 to such compensation, and the person so entitled shall, 
 irrespective of any insurance or other contract, have the 
 right to recover the same directly from the employer; and in 
 addition thereto, the right to enforce in his own name in 
 the manner provided in this act the liability of any insurance 
 company or of any employers' association organized under 
 the laws of the State of Michigan, or the commissioner of 
 insurance, 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 insurance company carrying such risk, 
 or the commissioner of insurance, as the case may be, shall, 
 to the extent thereof be a bar to recovery against the other, 
 of the amount so paid. 
 
 SEC. 3. Every contract for the insurance of the compen- 
 sation herein provided for, or against liability therefor, 
 shall be deemed to be made subject to the provisions of this 
 act, and provisions thereof inconsistent with this act shall 
 be void. No company shall enter into any such contract for 
 insurance, unless such company shall have been approved 
 by the commissioner of insurance as provided by law. 
 
 SEC. 4. Any employer against whom liability may exist 
 for compensation under this act may, with the approval 
 of the industrial accident board, be relieved therefrom by: 
 
 1. Depositing the present value of the total unpaid com- 
 pensation for which such liability exists, assuming interest 
 at three per centum per annum, with such trust company of
 
 976 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 this State as shall be designated by the employe, or by his 
 dependents, in case of his death, and such liability exists 
 in their favor, or in default of such designation by him, or 
 them, after ten days' notice in writing from the employer, 
 with such trust company of this State as shall be designated 
 by the industrial accident board; or 
 
 2. By the purchase of an annuity, within the limitation 
 provided by law, in any insurance company granting annuities 
 and licensed in this State, which may be designated by the 
 employe, or his dependents, or the industrial accident board, 
 as provided in subsection one of this section. 
 
 PARTY 
 ADMINISTRATION BY COMMISSIONER OF INSURANCE 
 
 SECTION 1. Whenever five or more employers, who have 
 become subject to the provisions of this act, and who have 
 on their pay rolls an aggregate number of not less than three 
 thousand employes, shall in writing request the commissioner 
 of insurance so to do, he shall assume charge of levying and 
 collection from such premium and dividends as may from 
 time to time be necessary to pay the sums which shall become 
 due their employes, or dependents of their employes, as com- 
 pensation under the provisions of this act, and also the ex- 
 pense of conducting the administration of such funds; and 
 shall disburse the same to the persons entitled to receive 
 such compensation under the provisions of this act: Provided, 
 however, That neither the commissioner of insurance nor 
 the State of Michigan shall become or be liable or responsible 
 for the payment of claims for compensation under the pro- 
 visions of this act beyond the extent of the funds so collected 
 and received by him as hereinafter provided. 
 
 SEC. 2. The commissioner of insurance shall immediately 
 upon assuming the administration of the collection and 
 disbursement of the moneys referred to in the preceding
 
 TEXTS OF COMPENSATION ACTS 977 
 
 Michigan 
 
 section, cause to be created in the state treasury a fund to 
 be known as "accident fund." Each such employer shall 
 contribute to this fund to the extent of such premiums or 
 assessments as the commissioner shall deem necessary to 
 pay the compensation accruing under this act to employes 
 of such employers or to their dependents, which premiums 
 and assessments shall be levied in the manner and proportion 
 hereinafter set forth. The commissioner of insurance shall 
 give a good and sufficient bond in the sum of twenty-five 
 thousand dollars, executed by some surety company author- 
 ized to do business in the State of Michigan, covering the 
 collection and disbursement of all moneys that may come into 
 his hands under the provisions of this act. The premium 
 on said bond shall be paid out of the general funds of the 
 State on an order of the auditor general. Said bond must 
 be approved by the board of state auditors. 
 
 SEC. 3. It is the intention that the amounts raised for 
 such fund shall ultimately become neither more nor less than 
 self-supporting, and the premiums or assessments levied for 
 such purpose shall be subject to readjustment from time to 
 time by the commissioner of insurance as may become 
 necessary. 
 
 SEC. 4. The commissioner of insurance may classify the 
 establishments or works of such employers hi groups in 
 accordance with the nature of the business in which they are 
 engaged and the probable risk of injury to their employes 
 under existing conditions. He shall determine the amount 
 of the premiums or assessments which such employers shall 
 pay to said accident fund, and may prescribe when and in 
 what manner such premiums and assessments shall be paid, 
 and may change the amount thereof both in respect to any 
 or all of such employers from time to time, as circumstances 
 may require, and the condition of their respective plants, 
 establishments or places of work in respect to the safety 
 of their employes may justify, but all such premiums or assess.- 
 62
 
 978 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 ments shall be levied on a basis that shall be fair, equitable 
 and just as among such employers. At the beginning of each 
 fiscal year it shall be the duty of the commissioner of insur- 
 ance to call for the required payment of premiums in such 
 amounts as shall, together with any balance in the accident 
 fund, in his judgment, and subject to the approval of said 
 industrial accident board, be sufficient to enable him to pay 
 all sums which may become due and payable to the employes 
 of any such employer who has become subject to the pro- 
 visions of part five of this act, and also the expenses of ad- 
 ministering such funds during the following year. 
 
 SEC. 5. If any employer shall make default in the pay- 
 ment of any contribution, premium or assessment required 
 as aforesaid by the commissioner of insurance, the sum due 
 shall be collected by an action at law in the name of the State 
 as plaintiff, and such right of action shall be in addition 
 to any other right of action or remedy. In case any injury 
 happens to any of the workmen of such employer during the 
 period of any default in the payment of any such premium, 
 assessment or contribution, the defaulting employer shall 
 not, if such default be after demand for payment, be entitled 
 to the benefits of this act, but shall be liable to suit by the 
 injured workman, or by his dependents in case death re- 
 sults from such accident, as if he had not elected to become 
 subject to this act. In case, however, the amount actually 
 collected in by such injured workman or his dependents 
 shall equal or exceed the compensation to which the plaintiff 
 therein would be entitled under this act, the plaintiff shall 
 not be paid anything out of said accident fund. If the said 
 amount shall be less than such compensation under this 
 act, the accident fund shall contribute the amount of the 
 deficiency. The person so entitled under the provisions of 
 this section shall have the choice, to be exercised before suit, 
 of proceeding by suit or taking under this act. If such person 
 shall take under this act, the cause of action against the
 
 TEXTS OP COMPENSATION ACTS 979 
 
 Michigan 
 
 employer shall be assigned to the State for the benefit of the 
 accident fund. 
 
 SEC. 6. Any employer subject to the provisions of part 
 five of this act, who has complied with all the rules, regula- 
 tions and demands of the industrial accident board and the 
 commissioner of insurance, may withdraw therefrom at the 
 expiration of the period of one year for which he has elected 
 to become subject to the provisions of this act: Provided, 
 however, That he shall give written notice of such withdrawal 
 to said commissioner of insurance at least thirty days before 
 the expiration of such period: And Provided further, That 
 if at the time of such withdrawal liability may exist against 
 employer for compensation to employes who have been 
 theretofore killed or injured, as hereinbefore provided, 
 such employer shall either relieve himself and the commis- 
 sioner of insurance from such liability in the manner pro- 
 vided in part four, section four of this act, or shall other- 
 wise protect and indemnify said commissioner of insurance 
 against such liability in such reasonable manner as he may 
 require. 
 
 SEC. 7. In case any controversy shall arise between the 
 commissioner of insurance and any employer subject to the 
 provisions of part five of this act, relative to any rule or 
 regulation adopted by said commissioner of insurance, or 
 any decision made by him in respect to the collection, admin- 
 istration and disbursement of such funds, or in case any 
 controversy shall arise between any employe claiming com- 
 pensation under the provisions of this act and said com- 
 missioner of insurance, all such controversies of every kind 
 and nature shall be subject to review in like manner and with 
 the same force and effect in all respects as is heretofore pro- 
 vided in respect to differences arising through the adminis- 
 tration of such funds by the employer, or by a liability in- 
 surance company or by an employers' mutual insurance 
 association.
 
 980 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 SEC. 8. The books, records and pay rolls of each employer 
 subject to the provisions of part five of this act shall always 
 be open to inspection by the commissioner of insurance, or 
 his duly authorized agent or representative, for the purpose 
 of ascertaining the correctness of the amount of the pay roll 
 reported, the number of men employed, and such other in- 
 formation as said commissioner may require in the adminis- 
 tration of said funds. Refusal on the part of any such em- 
 ployer to submit said books, records and pay rolls for such 
 inspection, shall subject the offending employer to a penalty 
 of fifty dollars for each offense, to be collected by civil action 
 in the name of the State and paid into the accident fund, 
 and the individual who shall personally give such refusal 
 shall be guilty of a misdemeanor. 
 
 SEC. 9. The commissioner of insurance shall issue proper 
 receipts for all moneys so collected and received from em- 
 ployers, as aforesaid, shall take receipts for all sums paid 
 to employe's for compensation under the provisions of this 
 act, and shall keep full and complete records of all business 
 transacted by him in the administration of such funds. 
 He may employ such deputies and assistants and clerical 
 help as may be necessary, and as the board of state auditors 
 may authorize, for the proper administration of said funds 
 and the performance of the duties imposed upon him by the 
 provisions of this act, at such compensation as may be fixed 
 by said board of state auditors, and may also remove them. 
 The commissioner of insurance and such deputies and assist- 
 ants shall be entitled to receive from the State their actual 
 and necessary expenses while traveling on the business of 
 the board, but all such salaries and expenses so authorized 
 by the provisions of this act shall be charged to and paid 
 out of said accident fund. He shall include in his annual 
 report a full and correct statement of the administration of 
 such fund, showing its financial status and outstanding 
 obligations, the claims and the amount paid on each claim,
 
 TEXTS OF COMPENSATION ACTS 981 
 
 Michigan 
 
 claims not paid, claims contested and why, and general 
 statistics in respect to all business transacted by him under 
 the provisions of this act. 
 
 SEC. 10. Disbursements from said accident fund shall be 
 made only upon warrants approved by the board of state 
 auditors upon vouchers therefor transmitted to it by the 
 commissioner of insurance. If at any time there shall not 
 be sufficient money in said fund wherewith to pay the same, 
 the employer on account of whose workmen it was that such 
 warrant was drawn shall pay the same, and he shall be cred- 
 ited upon his next following contribution to such fund the 
 amount so paid, with interest thereon at the legal rate, 
 from the date of such payment to the date such next follow- 
 ing contribution becomes payable, and if the amount of the 
 credit shall exceed the amount of the contribution, he shall 
 be repaid such excess. 
 
 SEC. 11. If this act shall be thereafter repealed, all moneys 
 which are in the accident fund at the time of such repeal 
 shall be subject to disposition under the direction of the 
 circuit court for the county of Ingham, with due regard, 
 however, to the obligation incurred and existing to pay 
 compensation under the provisions of this act. 
 
 PART VI 
 
 MISCELLANEOUS PROVISIONS 
 
 SECTION 1. If the employe", or his dependents, in case of 
 his death, of any employer subject to the provisions of this 
 act files any claim with, or accepts any payment from such 
 employer, or any insurance company carrying such risks, or 
 from the commissioner of insurance on account of personal 
 injury, or makes any agreement, or submits any question to 
 arbitration under this act, such action shall constitute a re- 
 lease to such employer of all claims or demands at law, if any, 
 arising from such injury.
 
 982 
 
 Michigan 
 
 SEC. 2. If the provisions of this act relating to compensa- 
 tion 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. 
 
 SEC. 3. This act shall not affect any cause of action existing 
 or pending before it went into effect. 
 
 SEC. 4. The provisions of this act shall apply to employers 
 and workmen engaged in intrastate commerce, and also to 
 those engaged in interstate or foreign commerce, for whom a 
 rule of liability or method of compensation has been or may 
 be established by the congress of the United States, only to 
 the extent that their mutual connection with intrastate work 
 may and shall be clearly separable and distinguishable from 
 interstate or foreign commerce, except that any such em- 
 ployer and any of his workmen working only in this State, 
 may, subject to the approval of the industrial accident 
 board, and so far as not forbidden by any act of congress, 
 voluntarily accept and become bound by the provisions of 
 this act in like manner and with the same force and effect in 
 all respects as is hereinbefore provided for other employers 
 and their workmen. 
 
 SEC. 5. All acts or parts of acts inconsistent with this act 
 are to be deemed replaced by this act, and to that end are 
 hereby repealed. 
 
 SEC. 6. The legislature intends that part five of this act 
 shall be deemed separate from the other parts thereof, so 
 that if said part five should fail or be adjudged invalid or 
 unconstitutional it shall in no way affect any other part of 
 this act.
 
 TEXTS OF COMPENSATION ACTS 983 
 
 Michigan 
 
 SEC. 7. To carry out the provisions of this act there is 
 hereby appropriated for the expenses of the industrial acci- 
 dent board for the fiscal year ending June thirtieth, nineteen 
 hundred thirteen, and annually thereafter, the sum of 
 twenty-five thousand dollars. The auditor general shall 
 add to and incorporate into the state tax the sum of twenty- 
 five thousand dollars annually, which said sum shall be in- 
 cluded in the state taxes apportioned by the auditor general 
 on all taxable property of the State, to be levied, assessed and 
 collected as other state taxes, and when so assessed and 
 collected to be paid into the general fund to reimburse said 
 fund for the appropriation made by this act. 
 
 SEC. 8. The provisions of this act shall take effect and be 
 in force from and after September first, nineteen hundred 
 twelve. 
 
 Approved March 20, 1912. 
 
 An act to authorize the formation of mutual insurance com- 
 panies whose members may be composed of persons, firms, 
 partnership associations or corporations who have elected 
 to come under the law relating to employers' liability and 
 workmen's compensation. 
 The People of the State of Michigan enact : 
 SECTION 1. Any number of persons, firms, partnership 
 associations or corporations, not less than five, who have be- 
 come subject to the provisions of the laws of Michigan re- 
 lating to employers' liability and workmen's compensation, 
 and who own or operate mills, factories, manufacturing 
 establishments of any and every kind, buildings, stores, 
 hotels and mercantile establishments, or any combination of 
 manufacturing and mercantile business, mines, quarries, 
 blast furnaces, railroads and transportation companies, tel-
 
 984 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 egraph and telephone companies, or who are engaged in the 
 production or supplying of gas and electricity for lighting, 
 fuel, power, or other purposes; printing, publishing and book- 
 making, or in carrying on any other lawful business in the 
 State of Michigan, may, subject to the approval of the in- 
 dustrial accident board of Michigan, associate together and 
 form an incorporated company for the purpose of mutual 
 insurance of its members against liability for any and all 
 payments which may become due and payable to their em- 
 ploye's under the provisions of law 'for death benefits, dis- 
 ability benefits, or otherwise, as hereinbefore set forth: 
 Provided, however, That the persons, firms or corporations 
 so associating themselves together for the organization of 
 such company shall have on their pay rolls at that time not 
 less than five thousand employes: And Provided further, 
 That the industrial accident board of Michigan may in its 
 discretion limit the employers forming or joining in the or- 
 ganization of any such company to those engaged in indus- 
 trial operations of the same general character, or in operations 
 in which the risks and hazards incurred by their employe's 
 are more or less similar in nature and extent. 
 
 SEC. 2. Such employers so associating shall prepare in 
 triplicate articles of association as hereinafter specified, 
 which shall first be submitted to the industrial accident board 
 and the commissioner of insurance for their approval, and 
 when approved, one copy thereof shall be filed in the office 
 of the commissioner of insurance, one copy in the office of 
 the secretary of state and the other copy with the county 
 clerk in the county where the principal office of such com- 
 pany will be maintained. Such articles of association shall 
 be signed by all the incorporators, and shall be acknowledged 
 by them, or by their duly authorized officers or agents, before 
 some officer of the State duly authorized to take acknowl- 
 edgment of deeds. 
 
 SEC. 3. Such articles of association shall set forth :
 
 TEXTS OF COMPENSATION ACTS 985 
 
 Michigan 
 
 First. The names of the persons, firms, partnership asso- 
 ciations and corporations associating in the first instance, 
 their respective residences, the nature of the business in which 
 they are engaged, and the number of persons employed 
 therein by each of them; 
 
 Second. That each and all of such incorporators have 
 elected, with the approval of the industrial accident board, to 
 become subject to the provisions of this act, and are forming 
 this corporation for the purpose of mutually insuring their 
 members against liability for any and all payments which 
 may become due and payable to their employes under the 
 provisions of this act; 
 
 Third. The name by which such corporation shall be 
 known ; 
 
 Fourth. The period for which the company is incorporated, 
 which shall not exceed thirty years; 
 
 Fifth. The number of directors, which shall be not less 
 than five, nor more than fifteen, and the names of the direct- 
 ors for the first year; 
 
 Sixth. The place where the office of the company shall be 
 located, which shall be within the State of Michigan. 
 
 SEC. 4. Any company formed under this act shall be 
 deemed a body corporate and politic in fact and in name, and 
 shall be subject to all the provisions of the statutes in relation 
 to corporations, so far as they are applicable. 
 
 SEC. 5. The incorporators of any company organized under 
 this act shall have power to make such by-laws not incon- 
 sistent with the constitution or laws of this State, as may 
 be deemed necessary for the government of its officers and 
 members, and the conduct of its affairs, the admission of new 
 members and regulations governing the assessment and col- 
 lection of premiums and assessments; but such by-laws shall 
 not become operative until a true copy thereof shall have 
 been filed with and approved by the industrial accident board. 
 
 SEC. 6. Upon the approval of the articles of association of
 
 986 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 such company by the industrial accident board and the com- 
 missioner of insurance, and upon filing the same with the 
 commissioner of insurance, with the secretary of state and 
 with the county clerk of the county where the principal 
 office of said company will be kept, the commissioner of 
 insurance shall grant a license to such company to issue 
 policies. 
 
 SEC. 7. The board of directors shall determine the amount 
 of the premiums of assessments which the members of such 
 company shall pay for such insurance, in accordance with 
 the nature of the business in which they are engaged, and the 
 probable risk of injury to their employes under existing con- 
 ditions. The board may also prescribe when and in what 
 manner such premiums shall be paid, and may change the 
 amount thereof both in respect to any or all of its members 
 from time to time, as circumstances may require and the 
 conditions of their respective plants, establishments or 
 places of work in respect to the safety of their employes may 
 justify, but all such premiums or assessments shall be levied 
 on a basis that shall be fair, equitable and just as among such 
 members; and it shall be the duty of such board of directors 
 at the beginning of each fiscal year, to call for the required 
 payment of premiums in such amount as shall, in the judg- 
 ment of said industrial accident board, be sufficient to enable 
 such company to pay all sums which may become due and 
 payable during the following year, to the employes or any of 
 its members under the provisions of this act, and also the 
 expenses of conducting its business. 
 
 SEC. 8. The company shall in its by-laws and policies fix 
 the contingent mutual liability of its members for the pay- 
 ment of losses and expenses not provided for by its cash 
 funds. Such contingent liability of a member shall not be 
 less than an amount equal to the liability imposed by this 
 act and of the act to provide compensation for the accidental 
 injury or death of employe's.
 
 TEXTS OF COMPENSATION ACTS 987 
 
 Michigan 
 
 SEC. 9. If the company is not possessed of cash funds so 
 that it has unearned premiums for the payment of incurred 
 losses and expenses, it shall make an assessment for the 
 amount needed to pay such losses and expenses upon the 
 members liable to assessment therefor in proportion to their 
 several liability. Every member shall pay his proportional 
 part of any assessment which may be laid by the board of 
 directors, hi accordance with the law and his contract, on 
 account of injuries sustained and expenses incurred while he 
 is a member of such company. 
 
 SEC. 10. The board of directors may, from time to time, 
 by vote, fix and determine the amount to be paid as a divi- 
 dend upon policies expiring during each year after retaining 
 sufficient sums to pay all the compensation which may be 
 payable on account of injuries sustained and expenses in- 
 curred. All premiums, assessments and dividends shall be 
 fixed and determined in accordance with the experience of 
 said company, but all the funds of the company, and the 
 contingent liability of all the members thereof, shall be 
 available for the payment of any claim against the com- 
 pany. 
 
 SEC. 11. Any proposed premium or assessment required of, 
 or any dividend or distribution made to the members, shall 
 be filed with the industrial accident board, and shall not 
 take effect until approved by said board after such investi- 
 gation as it may deem necessary. 
 
 SEC. 12. The board of directors may make and enforce 
 reasonable rules and regulations, not in conflict with the 
 laws of this State, for the prevention of injuries on the prem- 
 ises of members, and for this purpose the inspectors of the 
 company shall have free access to all such premises during 
 regular working hours. Any member neglecting to provide 
 suitable safety appliances as provided by law or as re- 
 quired by the board of directors may be expelled by a ma- 
 jority vote of all the members. Any member, or employe
 
 988 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Michigan 
 
 of any member, aggrieved by any such rule or regulation, 
 may petition the industrial accident board for review, and 
 it may affirm, amend or annul the rule or regulation. 
 
 SEC. 13. Any member of said company, who has complied 
 with all its rules, regulations and demands, may withdraw 
 therefrom at the expiration of the period of one year for 
 which he has elected to become subject to the provisions of 
 this act: Provided, however, That he shall give written 
 notice of such withdrawal to said company at least thirty 
 days before the expiration of such period: And Provided 
 further, That if at the time of such withdrawal liability 
 may exist against such member and against said company 
 for compensation to employes who have been theretofore 
 killed or injured as hereinbefore provided, such member 
 shall either relieve himself and said company from such 
 liability in the manner provided in part four, section four 
 of this act, or shall otherwise protect and indemnify said 
 company against such liability in such reasonable manner 
 as may be required by the board of directors. 
 
 SEC. 14. The business year of every company organized, 
 existing or doing business in this State, under and by virtue 
 of the provisions of this act, shall close on the thirty-first 
 day of December in each year, and every such company 
 shall within sixty days thereafter prepare, under oath of 
 its president and secretary, and file in the office of the com- 
 missioner of insurance of this State, and also with said in- 
 dustrial accident board, a detailed statement showing its 
 assets and how invested, liabilities, receipts from premiums 
 and all other sources, an itemized account of all expendi- 
 tures, salaries of officers, number of policies or certificates 
 in force, amount insured thereby, claims paid, and amount 
 paid on each claim, claims reported but not paid, claims 
 contested and why, and shall answer such other questions 
 as the commissioner of insurance, who shall furnish blanks 
 for that purpose, may require, in order to ascertain its true
 
 TEXTS OF COMPENSATION ACTS 989 
 
 Nevada 
 
 financial condition. The commissioner shall publish such 
 annual statements in detail in his annual report. 
 
 SEC. 15. If any officer of the company shall falsely make 
 oath to any certificate required to be filed with the insurance 
 commissioner, he shall be guilty of perjury. 
 
 SBC. 16. Any such company formed under this act shall 
 have power to amend its articles of association and by-laws 
 at its regular annual meeting or at special meetings called 
 and held as provided in its by-lawd, but said amendments 
 shall, before they become operative, be approved and filed 
 in the same manner as the original articles and by-laws. 
 
 SEC. 17. Any such company formed under this act shall 
 have power to own, hold and acquire such real and personal 
 property as shall be necessary for the transaction of its 
 business. 
 
 SEC. 18. Any company formed under this act may sue 
 and be sued in any court of law or equity, with the same 
 rights and obligations as a natural person, and in addition 
 to the powers hereinbefore enumerated, shall possess and 
 exercise all such rights and powers as are necessarily inci- 
 dental to the exercise of the powers expressly granted 
 herein. 
 
 Approved March 20, 1912. 
 
 NEVADA 
 
 (L. 1911, c. 183) 
 
 An act determining certain employments and industries to 
 be especially dangerous, establishing a system of compen- 
 sation for accidents to workmen engaged therein, requiring 
 employers or contractors carrying on such industries to 
 pay compensation, entitling injured workmen or their 
 legal representatives to receive such compensation, fixing 
 the amount of same and the manner of payment, fixing the 
 time within which claims for compensation must be made,
 
 990 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 prescribing the manner and method of giving notice to such 
 owner or contractor of such accident, providing for the 
 manner of settling disputed claims by arbitration, provid- 
 ing for their final determination by courts of justice, and 
 granting to courts of justice certain additional powers in 
 proceedings under this act, determining what persons shall 
 be liable under this act. 
 Approved March 24, 1911. 
 
 The people of the State of Nevada, represented in Senate 
 and Assembly, do enact as follows: 
 
 SECTION 1. If in any employment to which this act applies 
 personal injury disabling a workman from his regular service 
 for more than ten days, or death by accident, arising out of 
 and in the course of employment is caused to a workman, the 
 workman so injured, or in case of death, the member of his 
 family, as hereinafter defined, shall be entitled to receive 
 from his employer, and the said employer shall be liable to 
 pay, the compensation provided for in this act; provided, that 
 recovery hereunder shall not be barred where such employe 
 may have been guilty of contributory negligence where such 
 contributory negligence is slight and that of the employer is 
 gross in comparison, but in which event the compensation 
 may be diminished in proportion to the amount of negligence 
 attributable to such employe", and it shall be conclusively 
 presumed that such employe was not guilty of contributory 
 negligence in any case where the violation of any statute 
 enacted for the safety of employes contributed to such em- 
 ploye's injury; and it shall not be a defense: (1) That the 
 employe either expressly or impliedly assumed the risk of the 
 hazard complained of; (2) That the injury or death was 
 caused in whole or in part by the want of ordinary or reason- 
 able care of a fellow servant. No contract, rule or regulation 
 shall exempt the employer from any of the provisions of the 
 preceding section of this act. 
 SEC. 2. "Employer" includes any body of persons cor-
 
 TEXTS OF COMPENSATION ACTS 991 
 
 Nevada 
 
 porate or incorporate and the legal personal representative of 
 a deceased employer. "Workman" includes every person 
 who is engaged in an employment to which this act applies, 
 whether by way of manual labor or otherwise, and where his 
 agreement is one of service or apprenticeship or otherwise, 
 and is expressed or implied, is oral or in writing. Any 
 reference to a workman who has been injured shall, where the 
 workman is dead, include a reference to his legal personal 
 representative or to his dependents or other person to whom 
 compensation is payable. "Dependents" means wife, 
 father, mother, husband, sister, brother, child or grandchild; 
 provided, that they were wholly or partly dependent upon 
 the earnings of the workman at the time of his death. 
 
 SEC. 3. This act shall apply to workmen engaged in 
 manual or mechanical labor in the following employments 
 within this State, each of which is hereby determined to be 
 especially dangerous, in which from the nature, condition or 
 means of prosecution of the work therein, extraordinary 
 risks to the life and limb of workmen engaged therein are in- 
 herent, necessarily or substantially unavoidable, and to each 
 of which employments it is deemed necessary to establish a 
 new system of compensation for accidents to workmen. 
 
 (a) The erection or demolition of any bridge or building in 
 which there is, or in which the plans or specifications require 
 iron or steel framework; 
 
 (6) The operation of elevators, elevating machines or 
 derricks or hoisting apparatus used within or on the outside 
 of any bridge or building for the conveying of material in con- 
 nection with the erection or demolition of such bridge or 
 building; 
 
 (c) Work on scaffolds of any kind elevated twenty feet or 
 more above the ground, water or floor beneath, in the erec- 
 tion, construction, painting, alteration or repair of buildings, 
 bridges or structures; 
 
 (d) Construction, operation, alteration, or repair of wires,
 
 992 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 cables, switchboards or apparatus charged with electric 
 current; 
 
 (e) The operation on railroads of locomotives, engines, 
 trains, motors or cars propelled by gravity, steam, electricity 
 or other mechanical power, or the construction or repairs of 
 railroad tracks and roadbeds over which such locomotives, 
 engines, trains, motors, or cars are operated; 
 
 (/) Construction, operation, alteration, or repairs of loco- 
 motives, engines, trains, motors or cars in or about the shops, 
 round-houses, or other places, where the same is done; 
 
 (g) Construction, operation, alteration or repairs to mills, 
 smelters or mines, including every shaft or pit in the course of 
 being sunk, and every crosscut, drift, station, winze, level or 
 inclined planes through which workmen pass to and from 
 work, and all works, machinery, tramways, ladders or pas- 
 sages, both below ground and above ground, in and adjacent 
 to any mine; 
 
 (/?.) All work necessitating dangerous proximity to gun- 
 powder, blasting powder, dynamite or any other explosives, 
 where the same are used as instrumentalities of the industry; 
 
 (i) The construction of tunnels. 
 
 The employers to whom this act shall apply shall be any 
 person or persons, association, such industry as aforesaid. 
 
 SEC. 4. Notice of accidents must be given partnership or 
 corporation carrying on any to the employer as soon as 
 practicable after the happening thereof, and the claim for 
 compensation with respect to such accident within six months 
 from the occurrence of such accident causing the injury, or in 
 case of death, within six months from the time of death; pro- 
 vided, always, that the want of, or any defect or inaccuracy 
 in, such notice shall not be a bar to the maintenance of such 
 proceedings if it is found in the proceedings for settling the 
 claim that the employer is not prejudiced in his defense by 
 the want, defect or inaccuracy, and that such want, defect or 
 inaccuracy was occasioned by mistake or other reasonable
 
 TEXTS OF COMPENSATION ACTS 993 
 
 Nevada 
 
 cause. Notice in respect of an injury under this act shall 
 give the name and address of the person injured, and shall 
 state in ordinary language the cause of the injury, if known, 
 the date at which it was sustained, and shall be served on 
 the employer, or, if there is more than one employer, upon 
 one of such employers. The notice may be served by de- 
 livering the same to or at the residence or place of business 
 of the person upon whom it is to be served, or the notice may 
 also be served by post, by a registered letter addressed to the 
 person on whom it is to be served at his last known place of 
 residence or place of business, and if served by post shall be 
 deemed to have been served at the time when the letter con- 
 taining the same would have been delivered in the ordinary 
 course of post, and in proving the service of such notice it 
 shall be sufficient to prove that the notice was properly 
 addressed and registered. Where the employer is a body of 
 persons, natural or artificial, the notice may also be served 
 by delivering the same at, or by sending it by post in a regis- 
 tered letter addressed to the employer at the office, or, if 
 there be more than one office, any one of the offices of such 
 body. 
 
 SEC. 5. The amount of compensation in case death results 
 from injury, or for death accruing within five years as a re- 
 sult of injury, shall be: 
 
 (a) If the workman leave any person or persons who at the 
 time of the accident were wholly dependent upon his earnings, 
 a sum equal to his earnings in the employment of the same 
 employer during the three years next preceding the injury, 
 or the sum of two thousand dollars, whichever of these sums 
 is the greater, but not exceeding in any case three thousand 
 dollars; provided, that the total sum of any weekly payments 
 made under this act shall be deducted from such sum ; and if 
 the period of the workman's employment by the same em- 
 ployer has been less than the said three years, then the 
 amount of his earnings during the said three years shall be 
 
 63
 
 994 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 deemed to be nine hundred and thirty-six times his average 
 daily earnings during the period of his actual employment 
 under the same employer; 
 
 (6) If the workman leave only person or persons who at 
 the time of the accident were partly dependent upon his 
 earnings, a sum equal to 50 per cent of the amount payable 
 under the foregoing provisions of this section; 
 
 (c) If the workman leave no person at the time of the 
 accident who was dependent upon his earnings, the reasonable 
 expenses of his medical attendance and burial, not exceeding 
 in all three hundred dollars. 
 
 Whatever sum is payable under this section in case of 
 death of the injured workman shall be paid to his legal 
 representatives for the benefit of such dependents, and if he 
 leaves no such dependents, then to the public administrator, 
 for the benefit of the person or persons to whom the expenses 
 of medical attendance and burial are due. 
 
 SEC. 6. The amount of compensation in case of total or 
 partial disability resulting from injury shall be: 
 
 (a) A weekly payment during the disability, beginning 
 within ten days after the injury, 60 per cent of his average 
 weekly earnings in such employment during the previous 
 twelve months if he has been so long employed, but if not, 
 then for any less period during which he has been in the 
 employment of the same employer, so long as there is com- 
 plete disability; and that proportion of the said percentage 
 which the depleted earning capacity for that service bears to 
 the total disability when the injury is only partial, but in no 
 event shall the total of all payments under this act exceed 
 the sum of three thousand dollars; 
 
 (6) In addition to the foregoing payments, if the injured 
 person lose both feet or both hands, or one foot and one hand, 
 or both eyes or one eye and one foot or one hand, he shall 
 receive, during a full period of five years, 40 per cent of his 
 average weekly earnings, or if he lose one foot, one hand or
 
 TEXTS OF COMPENSATION ACTS 995 
 
 Nevada 
 
 one eye, the additional compensation therefor shall be 
 15 per cent of his average weekly earnings, the amount of 
 such earnings to be computed in the same manner as the 
 foregoing 60 per cent; provided, that in no case shall all the 
 payments received herein exceed in any month the whole 
 wages earned when the injury occurs, nor shall the added 
 percentages continue longer than to make all payments 
 aggregate three thousand dollars. 
 
 SEC. 7. Any workman entitled to receive weekly payments 
 under this act is required, if requested by the employer, to 
 submit himself for examination by a duly qualified medical 
 practitioner or surgeon provided and paid for by the em- 
 ployer, at a time and place reasonably convenient for the 
 workman, within three weeks after the injury, and thereafter 
 at intervals not oftener than once in six weeks. A copy of 
 the report of the examining physician shall be furnished to 
 the workman. If a dispute then exists as to the workman's 
 condition or amount of weekly compensation such dispute 
 shall be determined by arbitration under this act, or by 
 judicial procedure as hereinafter provided; provided, also, 
 that any and all disputes arising under this act may be first 
 submitted to a board of arbitration, and in case of failure to 
 settle it, resort may be had to courts of justice. 
 
 SEC. 8. Arbitration proceedings shall be as follows: The 
 employer and the workman may each choose one arbitrator, 
 the two arbitrators thus chosen shall choose a third, and the 
 three arbitrators shall hear the facts of the dispute within 
 three months after having been chosen, and within two 
 weeks thereafter, render a decision, which, if unanimous, 
 shall be final and binding on both parties. 
 
 SEC. 9. On failure of the board of arbitration to reach an 
 adjustment of the dispute above referred to, either party 
 may apply to a court of competent jurisdiction, and have an 
 adjudication as in any other controversy. And the findings 
 and judgment of the court shall be conclusive on all parties
 
 996 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Nevada 
 
 concerned. Said courts may compel the attendance of 
 witnesses and the production of evidence, as in all other 
 cases, provided for by law, and the judgment of said court 
 may continue and diminish or increase the weekly payments, 
 subject to the maximum provided in this act. The prevailing 
 party in any action, brought under the provisions of this act, 
 shall be entitled to his costs of suit and reasonable attorney's 
 fees; provided, that nothing in this act shall operate to defeat 
 the constitutional right of appeal. 
 
 SEC. 10. If any employer who shall be the principal, 
 enters into a contract with an independent contractor to do 
 part of such employer's work, or if such contractor enters 
 into a contract with a subcontractor to do all or any part of 
 the work comprised in such contractor's contract with the 
 employer, the said principal shall be liable to pay to any 
 workman employed in the execution of the work, any com- 
 pensation under this act, which he would have been liable to 
 pay if that workman had been immediately employed by 
 him; and where compensation is claimed from the principal, 
 then reference to the principal shall be substituted for refer- 
 ence to the employer, except the amount of compensation 
 shall be calculated with reference to the earnings of the 
 workman under the contractor or employer by whom he is 
 immediately employed. Where such principal is liable to 
 pay compensation he shall be entitled to be indemnified by 
 any person who would have been liable to pay compensation 
 to the workman independently of this section. Nothing in 
 this section shall be construed as preventing a workman 
 from recovering compensation under this act, from the con- 
 tractor or subcontractor, instead of the principal; nor shall 
 this section apply in any case where the accident shall occur 
 elsewhere than on or in or about the premises on which the 
 principal has undertaken to execute the work or which are 
 otherwise under his control or management. 
 
 SEC. 11. Nothing in this act contained shall be held or
 
 TEXTS OF COMPENSATION ACTS 997 
 
 Nevada 
 
 deemed to require any workman or his personal representa- 
 tives to proceed under its terms and provisions for the re- 
 covery of compensation of damages for death or accidental 
 injury. But if the workman or his personal representatives 
 shall so elect, he or they may disregard the provisions of this 
 act and may pursue any other remedy at law for the recovery 
 of such compensation of damages for or on account of such 
 death or injury. The right of election or choice of remedies 
 shall be exercised solely by such workman or his representa- 
 tives. 
 
 SEC. 12. A claim for compensation for the injury or death 
 of any employe or any reward or judgment entered thereon 
 shall be entitled to a preference over the other debts of the 
 employer if and to the same extent as the wages of such 
 employe shall be so preferred, but this section shall not im- 
 pair the lien of any judgment entered upon any award. 
 
 SEC. 13. The making of a lawful claim against an employer 
 for compensation under this act for the injury or death of his 
 employe" shall operate as an assignment of any assignable 
 cause of action in tort which the employe or his personal 
 representative may have against any other party for such 
 injury or death, and such employer may enforce in his own 
 name the liability of such other party. 
 
 SEC. 14. Nothing in this act contained shall be construed 
 as impairing the right of parties interested after the injury 
 or death of an employe" to compromise or settle upon such 
 terms as they may agree upon any liability which may be 
 claimed to exist under this act on account of such injury or 
 death, nor as conferring upon the dependents of any injured 
 employe" any interest which he may not divert by such settle- 
 ment or for which he or his estate shall in the event of such 
 settlement by him be accountable to such dependents or any 
 of them. 
 
 SEC. 15. This act shall take effect July 1, 1911.
 
 998 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 NEW HAMPSHIRE 
 (L. 1911, c. 163) 
 
 AN ACT in Relation to Employers' Liability and Workmen'^ 
 Compensation 
 
 SECTION 1. This act shall apply only to workmen engaged 
 in manual or mechanical labor in the employments described 
 in this section, which, from the nature, conditions or means 
 of prosecution of such work, are dangerous to the life and 
 limb of workmen engaged therein, because in them the risks 
 of employment and the danger of injury caused by fellow 
 servants are great and difficult to avoid, (a) The opera- 
 tion on steam or electric railroads of locomotives, engines, 
 trains or cars, or the construction, alteration, maintenance 
 or repair of steam railroad tracks or roadbeds over which 
 such locomotives, engines, trains or cars are or are to be 
 operated. (6) Work in any shop, mill, factory or other 
 place on, in connection with or in proximity to any hoisting 
 apparatus, or any machinery propelled or operated by steam 
 or other mechanical power in which shop, mill, factory or 
 other place five or more persons are engaged in manual or 
 mechanical labor, (c) The construction, operation, altera- 
 tion or repair of wires or lines of wires, cables, switch-boards 
 or apparatus, charged with electric currents, (d) All work 
 necessitating dangerous proximity to gunpowder, blasting 
 powder, dynamite or any other explosives, where the same 
 are used as instrumentalities of the industry, or to any 
 steam boiler owned or operated by the employer, provided 
 injury is occasioned by the explosion of any such boiler or 
 explosive, (e) Work in or about any quarry, mine or foundry. 
 As to each of said employments it is deemed necessary to 
 establish a new system of compensation for accidents to 
 workmen. 
 
 SEC. 2. If, in the course of any of the employments above
 
 TEXTS OF COMPENSATION ACTS 999 
 
 New Hampshire 
 
 described, personal injury by accident arising out of and in 
 the course of the employment is caused to any workman 
 employed therein, in whole or in part, by failure of the em- 
 ployer to comply with any statute, or with any order made 
 under authority of law, or by the negligence of the employer 
 or any of his or its officers, agents or employe's, or by reason 
 of any defect or insufficiency due to his, its or their negligence 
 in the condition of his or its plant, ways, works, machinery, 
 cars, engines, equipment, or appliances, then such employer 
 shall be liable to such workman for all damages occasioned 
 to him, or, in case of his death, to his personal representa- 
 tives for all damages now recoverable under the provisions 
 of chapter 191 of the Public Statutes. The workman shall 
 not be held to have assumed the risk of any injury due to 
 any cause specified in this section; but there shall be no 
 liability under this section for any injury to which it shall 
 be made to appear by a preponderance of evidence that the 
 negligence of the plaintiff contributed. The damages pro- 
 vided for by this section shall be recovered in an action on the 
 case for negligence. 
 
 SEC. 3. The provisions of section 2 of this act shall not 
 apply to any employer who shall have filed with the com- 
 missioner of labor his declaration in writing that he accepts 
 the provisions of this act as contained in the succeeding 
 sections, and shall have satisfied the commissioner of labor of 
 his financial ability to comply with its provisions, or shall 
 have filed with the commissioner of labor a bond, in such 
 form and amount as the commissioner may prescribe, con- 
 ditioned on the discharge by such employer of all liability 
 incurred under this act. Such bond shall be enforced by the 
 commissioner of labor for the benefit of all persons to whom 
 such employer may become liable under this act in the same 
 manner as probate bonds are enforced. The commissioner 
 may, from time to time, order the filing of new bonds, when 
 in his judgment such bonds are necessary; and after thirty
 
 1000 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 days from the communication of such order to any employer, 
 such employer shall be subject to the provisions of section 2 
 of this act until such order has been complied with. The 
 employer may at any time revoke his acceptance of the pro- 
 visions of the succeeding sections of this act by filing with 
 the commissioner of labor a declaration to that effect, and 
 by posting copies of such declaration in conspicuous places 
 about the place where his workmen are employed. Any 
 person aggrieved by any decision of the commissioner under 
 this section may apply by petition to any justice of the 
 superior court for a review of such decision and said justice 
 on notice and hearing shall make such order affirming, re- 
 versing or modifying such decision as justice may require; 
 and such order shall be final. Such employer shall be liable 
 to all workmen engaged in any of the employments specified 
 in section 1, for any injury arising out of and in the course 
 of their employment, in the manner provided in the following 
 sections of this act. Provided, that the employer shall not 
 be liable in respect of any injury which does not disable 
 the workman for a period of at least two weeks from earning 
 full wages at the work at which he was employed, and, pro- 
 vided, that the employer shall not be liable in respect of any 
 injury to the workman which is caused in whole or in part 
 by the intoxication, violation of law, or serious or willful 
 misconduct of the workman. Provided, further, that the 
 employer shall at the election of the workman, or his personal 
 representative, be liable under the provisions of section 2 
 of this act for all injury caused in whole or in part by willful 
 failure of the employer to comply with any statute, or with 
 any order made under authority of law. 
 
 SEC. 4. The right of action for damages caused by any 
 such injury, at common law, or under any statute in force 
 on January one, nineteen hundred and eleven, shall not be 
 affected by this act, but in case the injured workman, or in 
 event of his death his executor or administrator, shall avail
 
 TEXTS OF COMPENSATION ACTS 1001 
 
 New Hampshire 
 
 himself of this act, either by accepting any compensation 
 hereunder, by giving the notice hereinafter prescribed, or 
 by beginning proceedings therefor in any manner on account 
 of any such injury, he shall be barred from recovery in every 
 action at common law or under any other statute on account 
 of the same injury. In case after such injury the workman, 
 or in the event of his death his executor or administrator, 
 shall commence any action at common law or under any 
 statute other than this act against the employer therefor, 
 he shall be barred from all benefit of this act in regard thereto. 
 SEC. 5. No proceeding for compensation under this act 
 shall be maintained unless notice of the accident as herein- 
 after provided has been given to the employer as soon as 
 practicable after the happening thereof and before the work- 
 man has voluntarily left the employment in which he was 
 injured and during such disability, and unless claim for 
 compensation has been made within six months from the 
 occurrence of the accident, or in case of the death of the 
 workman, or in the event of his physical or mental incapacity 
 within six months after such death of the removal of such 
 physical or mental incapacity, or in the event that weekly 
 payments have been made under this article, within six 
 months after such payments have ceased, but no want or 
 defect or inaccuracy of a notice shall be a bar to the main- 
 tenance of proceedings unless the employer proves that he 
 is prejudiced by such want, defect or inaccuracy. Notice 
 of the accident shall apprise the employer of the claim for 
 compensation under this article, and shall state the name and 
 address of the workman injured, and the date and place of the 
 accident. The notice may be served personally or by sending 
 it by mail in a registered letter addressed to the employer 
 at his last known residence or place of business. 
 
 SEC. 6. (1) The amount of compensation shall be, in case 
 death results from injury: (a) If the workman leaves any 
 widow, children or parents, resident of this State, at the time
 
 1002 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 of his death, then wholly dependent on his earnings, a sum 
 to compensate them for loss, equal to one hundred and fifty 
 times the average weekly earnings of such workman when at 
 work on full time during the preceding year during which he 
 shall have been in the employ of the same employer, or if he 
 shall have been in the employment of the same employer for 
 less than a year then one hundred and fifty times his average 
 weekly earnings on full time for such less period. But in no 
 event shall such sum exceed three thousand dollars. Any 
 weekly payments made under this act shall be deducted from 
 the sum so fixed. (6) If such widow, children or parents at 
 the time of his death are in part only dependent upon his 
 earnings, such proportion of the benefits provided for those 
 wholly dependent as the amount of the wage contributed by 
 the deceased to such partial dependents at the time of injury 
 bore to the total wage of the deceased, (c) If he leaves no 
 such dependents, the reasonable expenses of his medical at- 
 tendance and burial, not exceeding one hundred dollars. 
 Whatever sum may be determined to be payable under this 
 act in case of death of the injured workman shall be paid to 
 his legal representative for the benefit of such dependents, or 
 if he leaves no such dependents, for the benefit of the persons 
 to whom the expenses of medical attendance and burial are 
 due. 
 
 (2) Where total or partial incapacity for work at any gain- 
 ful employment results to the workman from the injury, a 
 weekly payment commencing at the end of the second week 
 after the injury and continuing during such incapacity, sub- 
 ject as herein provided, not exceeding fifty per centum of his 
 average weekly earnings when at work on full time during 
 the preceding year during which he shall have been in the 
 employment of the same employer, or if he shall have been 
 in the employment of the same employer for less than a year, 
 then a weekly payment of not exceeding one-half the average 
 weekly earnings on full time for such less period. In fixing
 
 TEXTS OF COMPENSATION ACTS 1003 
 
 New Hampshire 
 
 the amount of the weekly payment, regard shall be had to 
 the difference between the amount of the average earnings of 
 the workman before the accident and the average amount he 
 is able to earn thereafter as wages in the same employment 
 or otherwise. In fixing the amount of the weekly payment, 
 regard shall be had to any payment, allowance or benefit 
 which the workman may have received from the employer 
 during the period of his incapacity, and in the case of partial 
 incapacity the weekly payment shall in no case exceed the 
 difference between the amount of the average weekly earnings 
 of the workman before the accident and the average weekly 
 amount which he is earning or is able to earn in the same 
 employment or otherwise after the accident, but shall 
 amount to one-half of such difference. In no event shall any 
 compensation paid under this act exceed the damage suffered, 
 nor shall any weekly payment payable under this act in any 
 event exceed ten dollars a week or extend over more than 
 three hundred weeks from the date of the accident. Such 
 payment shall continue for such period of three hundred 
 weeks provided total or partial disability continue during such 
 period. No such payment shall be due or payable for any 
 time prior to the giving of the notice required by section 5 of 
 this act. 
 
 SEC, 7. Any workman entitled to receive weekly payments 
 under this act is required, if requested by the employer, to 
 submit himself for examination by a duly qualified medical 
 practitioner or surgeon provided and paid for by the em- 
 ployer, at a time and place reasonably convenient for the 
 workman, within two weeks after the injury, and thereafter 
 at intervals not oftener than once in a week. If the workman 
 refuses to submit to such examination, or obstructs the same, 
 his right to weekly payments shall be suspended until such 
 examination has taken place, and no compensation shall be 
 payable during or for account of such period. 
 
 SEC. 8. In case an injured workman shall be mentally in-
 
 1004 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Hampshire 
 
 competent at the time when any right or privilege accrues 
 to him under this act, the guardian of the incompetent ap- 
 pointed pursuant to law may, on behalf of such incompetent, 
 claim and exercise any such right or privilege with the same 
 force and effect as if the workman himself had been com- 
 petent and had claimed or exercised any such right or 
 privilege, and no limitation of time in this act provided for 
 shall run so long as said incompetent workman has no 
 guardian. 
 
 SEC. 9. Any question as to compensation which may 
 arise under this act shall be determined by agreement or by 
 an action at equity, as hereinafter provided. In case the 
 employer fail to make compensation as herein provided, the 
 injured workman, or his guardian, if such be appointed, or 
 his executor or administrator, may then bring an action to 
 recover compensation under this act in any court having 
 jurisdiction of an action for recovery of damages for negli- 
 gence for the same injury between the same parties. Such 
 action shall be by petition in equity, which may be made 
 returnable at the appropriate term of the Superior Court or 
 may be filed in the office of the clerk of the Superior Court 
 and presented in term time or vacation to any justice of said 
 court, who on reasonable notice shall hear the parties and 
 render judgment thereon. The judgment in such action if 
 in favor of the plaintiff shall be for a lump sum equal to the 
 amount of payments then due and prospectively due under 
 this act. In such action by an executor or administrator the 
 judgment may provide the proportions of the award or the 
 costs to be distributed to or between the several dependents. 
 If such determination is not made it shall be determined by 
 the Probate Court in which such executor or administrator 
 is appointed, in accordance with this act, on petition of any 
 party interested, on such notice as such court may direct. 
 Any employer who has declared his intention to act under the 
 compensation features of this act shall also have the right to
 
 TEXTS OF COMPENSATION ACTS 1005 
 
 New Hampshire 
 
 apply by similar proceedings to the Superior Court or to any 
 justice thereof for a determination of the amount of the 
 weekly payments to be paid the injured workman, or of a 
 lump sum to be paid the injured workman in lieu of such 
 weekly payments; and either such employer or workman 
 may apply to said Superior Court or to any justice thereof 
 in similar proceeding for the determination of any other 
 question that may arise under the compensation feature of 
 this act; and said court or justice, after reasonable notice 
 and hearing, may make such order as to the matter in dis- 
 pute and taxable costs as justice may require. 
 
 SEC. 10. Any person entitled to weekly payments under 
 this act against any employer shall have the same preferential 
 claim therefor against the assets of the employer as is allowed 
 by law for a claim by such person against such employer for 
 unpaid wages or personal services. Weekly payments due 
 under this act shall not be assignable or subject to levy, 
 execution, attachment or satisfaction of debts. Any right to 
 receive compensation under this act shall be extinguished by 
 the death of the person entitled thereto. 
 
 SEC. 11. No claim of any attorney-at-law for any con- 
 tingent interest in any recovery under this act for services in 
 securing such recovery or for disbursements shall be an 
 enforceable lien on such recovery, unless the account of the 
 same be approved in writing by a justice of the Superior 
 Court or, in case the same be tried in any court, by the 
 justice presiding at such trial. 
 
 SEC. 12. Every employer subject to the provisions of this 
 act, shall from time to time make to the commissioner of 
 labor such returns as to its operation as said commissioner 
 may require upon blanks to be furnished by said commis- 
 sioner. Any employer failing to make such returns when re- 
 quired by said commissioner shall, until such returns are 
 made, be subject to the provisions of section 2 of this 
 act.
 
 1006 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 SEC. 13. This act shall take effect January first, nineteen 
 hundred and twelve. 
 Approved April 15, 1911. 
 
 NEW JERSEY 
 
 (L. 1911, c. 95) 
 
 An Act prescribing the liability of an employer to make 
 compensation for injuries received by an employ 4 in the 
 course of employment, establishing an elective schedule of 
 compensation, and regulating procedure for the determina- 
 tion of liability and compensation thereunder. 
 
 Be it enacted by the Senate and General Assembly of the 
 State of New Jersey: 
 
 COMPENSATION BY ACTION AT LAW 
 
 SECTION I, 1. Employe entitled to compensation for acci- 
 dental injury. Fact determined by jury. 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 lawfully im- 
 puted negligence of the employer is the natural and proximate 
 cause, he shall receive compensation therefor from his em- 
 ployer, provided the employe was himself not willfully negli- 
 gent at the time of receiving such injury, and the question of 
 whether the employe was willfully negligent shall be one of 
 fact to be submitted to the jury, subject to the usual superin- 
 tending powers of a court to set aside a verdict rendered 
 contrary to the evidence. 
 
 2. Certain pleas abolished. The right to compensation as 
 provided by section I, 1 of this act shall riot be defeated upon 
 the ground that the injury was caused in any degree by the 
 negligence of a fellow employe; or that the injured employe 
 assumed the risks inherent in or incidental to or arising out 
 of his employment or arising from the failure of the employer
 
 1007 
 
 New Jersey 
 
 to provide and maintain safe premises and suitable appli- 
 ances; which said grounds of defense are hereby abolished. 
 
 3. Contract not to bar liability. If an employer enters into 
 a contract, written or verbal, with an independent contractor 
 to do part of such employer's work, or if such contractor 
 enters into a contract, written or verbal, with a subcontractor 
 to do all or any part of such work comprised in such con- 
 tractor's contract with the employer, such contract or sub- 
 contract shall not bar the liability of the employer under 
 this act for injury caused to an employe" of such contractor 
 or subcontractor by any defect in the condition of the ways, 
 works, machinery or plant if the defect arose or had not 
 been discovered and remedied through the negligence of 
 the employer or some one intrusted by him with the duty 
 of seeing that they were in proper condition. This paragraph 
 shall apply only to actions arising under section I. 
 
 4. Application of act in case of death. The provisions of 
 paragraphs one, two and three shall apply to any claim for 
 the death of an employe arising under an act entitled "An 
 act to provide for the recovery of damages in cases where the 
 death of a person is caused by wrongful act, neglect or de- 
 fault," approved March third, eighteen hundred and forty- 
 eight, and the amendments thereof and supplements thereto. 
 
 5. Burden of proof on defendant. In all actions at law 
 brought pursuant to section I of this act, the burden of proof 
 to establish willful negligence in the injured employe shall 
 be upon the defendant. 
 
 6. Claim against compensation. Proviso. No claim for 
 legal services or disbursements pertaining to any demand 
 made or suit brought under the provisions of this act shall 
 be an enforceable lien against the amount paid as compen- 
 sation, unless the same be approved in writing by the judge 
 or justice presiding at the trial, or in case of settlement with- 
 out trial, by the judge of the Circuit Court of the district in 
 which such issue arose; provided, that if notice in writing be
 
 1008 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 given the defendant of such claim for legal services or dis- 
 bursements, the same shall be a lien against the amount 
 paid as compensation, subject to determination of the amount 
 and approval hereinbefore provided. 
 
 ELECTIVE COMPENSATION 
 
 SEC. II, 7. Compensation under agreement. Exceptions. 
 When employer and employe* shall by agreement, either ex- 
 press or implied, as hereinafter provided, accept the provisions 
 of section II of this act, compensation for personal injuries 
 to or for the death of such employe" by accident arising out 
 of and in the course of his employment shall be made by the 
 employer without regard to the negligence of the employe, 
 according to the schedule contained in paragraph eleven, in 
 all cases except when the injury or death is intentionally 
 self-inflicted, or when intoxication is the natural and prox- 
 imate cause of injury, and the burden of proof of such fact 
 shall be upon the employer. 
 
 8. Agreement deemed surrender of rights to other method. 
 Such agreement shall be a surrender by the parties thereto 
 of their rights to any other method, form or amount of com- 
 pensation or determination thereof than as provided in 
 section II of this act, and an acceptance of all the provisions 
 of section II of this act, and shall bind the employe himself 
 and for compensation for his death shall bind his personal 
 representatives, his widow and next of kin, as well as the 
 employer, and those conducting his business during bank- 
 ruptcy or insolvency. 
 
 9. Employment subject to this act. Every contract of hiring 
 made subsequent to the time provided for this act to take 
 effect shall be presumed to have been made with reference 
 to the provisions of section II of this act, and unless there 
 be as a part of such contract an express statement in writing, 
 prior to any accident, either in the contract itself or by 
 written notice from either party to the other, that the pro-
 
 TEXTS OF COMPENSATION ACTS 1009 
 
 New Jersey 
 
 visions of section II of this act are not intended to apply, 
 then it shall be presumed that the parties have accepted the 
 provisions of section II of this act and have agreed to be 
 bound thereby. In the employment of minors, section II 
 shall be presumed to apply unless the notice be given by or 
 to the parent or guardian of the minor. 
 
 10. Termination of contract. The contract for the opera- 
 tion of the provisions of section II of this act may be ter- 
 minated by either party upon sixty days' notice in writing 
 prior to any accident. 
 
 11. Following is the schedule of compensation: 
 
 (a) Schedule of payments. Temporary disability. Proviso. 
 For injury producing temporary disability, fifty per centum 
 of the wages received at the time of injury, subject to a 
 maximum compensation of ten dollars per week and a 
 minimum of 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. This compensation shall be paid 
 during the period of such disability, not, however, beyond 
 three hundred weeks. 
 
 (6) Complete disability. Proviso. For disability total 
 in character and permanent in quality, fifty per centum of 
 the wages received at the time of injury, subject to a max- 
 imum compensation of ten dollars per week and a minimum 
 of 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 wages per week. 
 This compensation shall be paid during the period of such 
 disability, not, however, beyond four hundred weeks. 
 
 (c) Partial disability. For disability partial in character 
 but permanent hi quality, the compensation shall be based 
 upon the extent of such disability. In cases included by the 
 following schedule the compensation shall be that named 
 in the schedule, to wit: 
 64
 
 1010 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 Thumb. For the loss of a thumb, fifty per centum of 
 daily wages during sixty weeks. 
 
 First finger. For the loss of a first finger, commonly called 
 index finger, fifty per centum of daily wages during thirty- 
 five weeks. 
 
 Second finger. For the loss of a second finger, fifty per 
 centum of daily wages during thirty weeks. 
 
 Third finger. For the loss of a third finger, fifty per centum 
 of daily wages during twenty weeks. 
 
 Fourth finger. For the loss of a fourth finger, commonly 
 called little finger, fifty per centum of daily wages during 
 fifteen weeks. 
 
 Phalange. The loss of the first phalange of the thumb, or 
 of any finger, shall be considered to be equal to the loss of 
 one-half of such thumb, or finger, and compensation shall be 
 one-half the amounts above specified. 
 
 More than one phalange. Proviso. The loss of more than 
 one phalange shall be considered as the loss of the entire 
 finger or thumb; providing, however, that in no case shall the 
 amount received for more than one finger exceed the amount 
 provided in this schedule for the loss of a hand. 
 
 Great toe. For the loss of a great toe, fifty per centum of 
 daily wages during thirty weeks. 
 
 Other toes. For the loss of one of the toes other than a great 
 toe, fifty per centum of daily wages during ten weeks. 
 
 Phalange of toe. For the loss of the first phalange of any 
 toe shall be considered to be equal to the loss of one-half of 
 such toe, and compensation shall be one-half of the amount 
 above specified. 
 
 More than one phalange. The loss of more than one 
 phalange shall be considered as the loss of the entire toe. 
 
 Hand. For the loss of a hand, fifty per centum of daily 
 wages during one hundred and fifty weeks. 
 
 Arm. For the loss of an arm, fifty per centum of daily 
 wages during two hundred weeks.
 
 TEXTS OF COMPENSATION ACTS 1011 
 
 New Jersey 
 
 Foot. For the loss of a foot, fifty per centum of daily wages 
 during one hundred and twenty-five weeks. 
 
 Leg. For the loss of a leg, fifty per centum of daily wages 
 during one hundred and seventy-five weeks. 
 
 Eye. For the loss of an eye, fifty per centum of daily 
 wages during one hundred weeks. 
 
 Both hands, etc. The loss of both hands, or both arms, or 
 both feet, or both legs, or both eyes, or of any two thereof, 
 shall constitute total and permanent disability, to be com- 
 pensated according to the provisions of clause (6). 
 
 In other cases. In all other cases in this class the compen- 
 sation shall bear such relation to the amounts stated in the 
 above schedule as the disabilities bear to those produced by 
 the injuries named in the schedule. Should the employer 
 and employe" be unable to agree upon the amount of com- 
 pensation to be paid in cases not covered by the schedule, 
 the amount of compensation shall be settled according to the 
 provisions of paragraph twenty hereof. 
 
 Maximum and minimum amount. The amounts specified 
 in this clause are all subject to the same limitations as to 
 maximum and minimum as are stated in clause (a). 
 
 12. Basis of computation in case of death. In case of death 
 compensation shall be computed but not distributed on the 
 following basis: 
 
 (1) Actual dependents. 
 
 If orphan or orphans, a minimum of twenty-five per cen- 
 tum of wages of deceased, with ten per centum additional for 
 each orphan in excess of two, with, a maximum of sixty per 
 centum. 
 
 If widow alone, twenty-five per centum of wages. 
 
 If widow and one child, forty per centum of wages. 
 
 If widow and two children, forty-five per centum of wages. 
 
 If widow and three children, fifty per centum of wages. 
 
 If widow and four children, fifty-five per centum of 
 wages.
 
 1012 BRADBUEY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 If widow and five children or more, sixty per centum of 
 wages. 
 
 If widow and father or mother, fifty per centum of 
 wages. 
 
 If grandparents, grandchildren, or minor, or incapacitated 
 brothers or sisters, twenty-five per centum of wages. 
 
 Distribution of compensation in case of death. Compensa- 
 tion in case of death shall be computed on the basis of the 
 foregoing schedule, but shall be distributed according to the 
 laws of this State providing for the distribution of the per- 
 sonal property of an intestate decedent, unless decedent has 
 in fact left a will. 
 
 (2) No dependents. 
 
 Sickness and burial. Expense of last sickness and burial 
 not exceeding two hundred dollars. 
 
 Orphans and minors. In computing compensation to 
 orphans or other children, only those under sixteen years of 
 age shall be included, and only during the period in which 
 they are under that age, at which time payment on account 
 of such child shall cease. 
 
 Weekly compensation. Proviso. Duration. The compen- 
 sation in case of death shall be subject to a maximum com- 
 pensation of ten dollars per week and a minimum of 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 three hundred 
 weeks. 
 
 Aliens excepted. Compensation under this schedule shall 
 not apply to alien dependents not residents of the United 
 States. 
 
 13. No compensation first two weeks. No compensation 
 shall be allowed for the first two weeks after injury received, 
 except as provided by paragraph fourteen, nor in any case 
 unless the employer has actual knowledge of the injury or is
 
 TEXTS OF COMPENSATION ACTS 1013 
 
 New Jersey 
 
 notified thereof within the period specified in paragraph 
 fifteen. 
 
 14. Medical and hospital services supplied first two weeks. 
 During the first two weeks after the injury the employer 
 shall furnish reasonable medical and hospital services and 
 medicines, as and when needed, not to exceed one hundred 
 dollars in value, unless the employe refuses to allow them to 
 be furnished by the employer. 
 
 15. As to notification of employer. Unless the employer 
 shall have actual knowledge of the occurrence of the injury, 
 or unless the employe, or some one on his behalf, or some of 
 the dependents, or some one on their behalf, shall give 
 notice thereof to the employer within fourteen days of the 
 occurrence of the injury, then no compensation shall be due 
 until such notice is given or knowledge obtained. If the 
 notice is given, or the knowledge obtained within thirty 
 days from the occurrence of the injury, no want, failure, or 
 inaccuracy of a notice shall be a bar to obtaining compensa- 
 tion, unless the employer shall show that he was prejudiced 
 by such want, defect or inaccuracy, and then only to the 
 extent of such prejudice. If the notice is given, or the knowl- 
 edge obtained within ninety days, and if the employe", or other 
 beneficiary, shall show that his failure to give prior notice was 
 due to his mistake, inadvertence, ignorance of fact or law, or 
 inability, or to the fraud, misrepresentation or deceit of 
 another person, or to any other reasonable cause or excuse, 
 then compensation may be allowed, unless, and then to the 
 extent only that the employer shall show that he was prej- 
 udiced by failure to receive such notice. Unless knowledge 
 be obtained, or notice given, within ninety days after the 
 occurrence of the injury, no compensation shall be allowed. 
 
 16. Service of notice. The notice referred to may be served 
 personally upon the employer, or upon any agent of the 
 employer upon whom a summons may be served in a civil 
 action, or by sending it through the mail to the employer at
 
 1014 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 the last known residence or business place thereof within the 
 State, and shall be substantially hi the following form: 
 
 Form of notice. Sufficiency of notice. 
 
 To (name of employer) : 
 
 You are hereby notified that a personal hi jury was re- 
 ceived by (name of employe injured), who was in your em- 
 ploy at (place) while engaged as (nature of employment), 
 on or about the ( ) day of ( ), nineteen 
 
 hundred and ( ), and that compensation will be 
 
 claimed therefor. 
 
 Signed, 
 
 ( ) 
 
 but no variation from this form shall be material if the 
 notice is sufficient to advise the employer that a certain 
 employ 6, by name, received an injury in the course of his 
 employment on or about a specified time, at or near a cer- 
 tain place. Notice served at the office of, or on the person 
 who was the employer's immediate superior, shall be a 
 compliance with this act. 
 
 17. Examination of employe as to physical condition. 
 After an injury, the employe", if so requested by his em- 
 ployer, must submit himself for examination at some rea- 
 sonable time and place within the State, and as often as 
 may be reasonably requested, to a physician or physicians 
 authorized to practice under the laws of this State. If the 
 employe requests, he shall be entitled to have a physician or 
 physicians of his own selection present to participate in 
 such examination. The refusal of the employ 6 to submit to 
 such examination shall deprive him of the right to compen- 
 sation during the continuance of such refusal. When a 
 right to compensation is thus suspended no compensation 
 shall be payable in respect of the period of suspension. 
 
 18. In case of dispute question submitted to court. In case 
 of a dispute over, or failure to agree upon, a claim for com- 
 pensation between employer and employe", or the depend-
 
 TEXTS OF COMPENSATION ACTS 1015 
 
 New Jersey 
 
 ents of the employe, either party may submit the claim 
 both as to questions of fact, the nature and effect of the 
 injuries, and the amount of compensation therefor accord- 
 ing to the schedule herein provided, to the judge of the court 
 of common pleas of such county as would have jurisdiction 
 in a civil case, or where there is more than one judge of said 
 court, then to either or any of said judges of such court, 
 which judge is hereby authorized to hear and determine 
 such disputes in a summary manner, and his decision as 
 to all questions of fact shall be conclusive and binding. 
 
 19. Payment in case of death. In case of death, where 
 no executor or administrator is qualified, the said judge 
 shall, by order, direct payment to be made to such person 
 as would be appointed administrator of the estate of such 
 decedent upon like terms as to bond for the proper applica- 
 tion of compensation payments as are required of adminis- 
 trators. 
 
 20. Procedure in dispute. Procedure in case of dispute 
 shall be as follows: 
 
 Petition to court. Either party may present a petition 
 to said judge setting forth the names and residences of the 
 parties and the facts relating to employment at the time 
 of injury, the injury in its extent and character, the amount 
 of wages received at the time of injury, the knowledge of 
 the employer or notice of the occurrence of said injury, and 
 such other facts as may be necessary and proper for the 
 information of the said judge, and shall state the matter 
 or matters in dispute and the contention of the petitioner 
 with reference thereto. This petition shall be verified by 
 the oath or affirmation of the petitioner. 
 
 Notice of hearing. Answer filed. Upon the presentation 
 of such petition the same shall be filed with the clerk of 
 the court of common pleas, and the judge shall fix a time 
 and place for the hearing thereof, not less than three weeks 
 after the date of the filing of said petition. A copy of said
 
 1016 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 petition shall be served as summons in a civil action and may 
 be served within four days thereafter upon the adverse 
 party. Within seven days after the service of such notice 
 the adverse party 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 refer- 
 ence to the matters in dispute as disclosed by the petition. 
 The answer shall be verified in like manner as required for 
 a petition. 
 
 Hear witnesses. Determination. Subsequent proceedings. 
 As to costs. At the time fixed for hearing or any adjourn- 
 ment thereof the said judge shall hear such witnesses as 
 may be presented by each party, and in a summary manner 
 decide the merits of the controversy. This determination 
 shall be filed in writing with the clerk of the common pleas 
 court, and judgment shall be entered thereon in the same 
 manner as in causes tried in. the court of common pleas, 
 and shall contain a statement of facts as determined by 
 said judge. Subsequent proceedings thereon shall only be 
 for the recovery of moneys thereby determined to be due, 
 provided that nothing herein contained shall be construed 
 as limiting the jurisdiction of the Supreme Court to review 
 questions of law by certiorari. Costs may be awarded by 
 said judge in his discretion, and when so awarded the same 
 costs shall be allowed, taxed and collected as are allowed, 
 taxed and collected for like services in the common pleas 
 court. 
 
 21. Amount may be commuted. The amounts payable 
 periodically as compensation may be commuted to one or 
 more lump sum payments by the judge of the court of com- 
 mon pleas having jurisdiction as set forth in the preceding 
 paragraph, upon the application of either party, in his dis- 
 cretion, provided the same be in the interest of justice. Un- 
 less so approved, no compensation payments shall be com- 
 muted.
 
 TEXTS OF COMPENSATION ACTS 1017 
 
 New Jersey 
 
 Agreement or award may be modified. An agreement or 
 award of compensation may be modified at any time by a 
 subsequent agreement, or at any time after one year from 
 the time when the same became operative it may be reviewed 
 upon the application of either party on the ground that the 
 incapacity of the injured employe has subsequently increased 
 or diminished. In such case the provisions of paragraph 
 seventeen with reference to medical examination shall apply. 
 
 22. Compensation a preferential lien. Claims not assign- 
 able. The right of compensation granted by this act shall 
 have the same preference against the assets of the employer 
 as is now or may hereafter be allowed by law for a claim 
 for unpaid wages for labor. Claims or payments due under 
 this act shall not be assignable, and shall be exempt from 
 all claims of creditors and from levy, execution or attach- 
 ment. 
 
 GENERAL PROVISIONS 
 
 SEC. Ill, 23. What constitutes willful negligence. For the 
 purposes of this act, willful negligence shall consist of (1) 
 deliberate act or deliberate failure to act, or (2) such conduct 
 as evidences reckless indifference to safety, or (3) intoxication, 
 operating as the proximate cause of injury. 
 
 Use of certain words. Wherever in this act the singular 
 is used the plural shall be included; where the masculine 
 gender is used, the feminine and neuter shall be included. 
 
 Synonyms. Employer is declared to be synonymous with 
 master and includes natural persons, partnerships and cor- 
 porations; employe" is synonymous with servant and includes 
 all natural persons who perform service for another for 
 financial consideration, exclusive of casual employments. 
 
 As to amputations. 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.
 
 1018 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 24. As to constitutionality of any provision. Relation of 
 sections of act. In case for any reason any paragraph 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 sections I and II are hereby declared 
 to be inseparable, and if either section be declared void or 
 inoperative in an essential part, so that the whole of such 
 section must fall, the other section shall fall with it and not 
 stand alone. Section I of this act shall not apply in cases 
 where section II becomes operative in accordance with the 
 provisions thereof, but shall apply in all other cases, and in 
 such cases shall be in extension of the common law. 
 
 25. Rights of action in previous cases. Every right of action 
 for negligence, or to recover damages for injuries resulting 
 in death, existing before this act shall take effect, is continued, 
 and nothing in this act contained shall be construed as 
 affecting any such right of action nor shall the failure to give 
 the notice provided for in section II, paragraph fifteen of 
 this act, be a bar to the maintenance of a suit upon any 
 right or action existing before this act shall take effect. 
 
 26. Repealer. All acts or parts of acts inconsistent with 
 the provisions of this act are hereby repealed. 
 
 27. Effective. This act shall take effect on the fourth day 
 of July next succeeding its passage and approval. 
 
 Approved April 4, 1911. 
 
 (L. 1911, c. 368) 
 
 A supplement to an act entitled "an act prescribing the lia- 
 bility of an employer to make compensation for injuries 
 received by an employe 1 in the course of employment, es- 
 tablishing an elective schedule of compensation, and regu- 
 lating procedure for the determination of liability and com- 
 pensation thereunder," approved April 4, one thousand 
 nine hundred and eleven.
 
 TEXTS OF COMPENSATION ACTS 1019 
 
 New Jersey 
 
 Be it enacted by the Senate and General Assembly of the State 
 of New Jersey: 
 
 1. Every contract of hiring, verbal, written or implied 
 from circumstances, now in operation or made or implied 
 prior to the time limited for the act to which this act is a 
 supplement to take effect, shall, after this act takes effect, 
 be presumed to continue subject to the provisions of section 
 two of the act to which this act is a supplement, unless either 
 party shall, prior to accident, in writing, notify the other party 
 to such contract that the provisions of section two of the 
 act to which this act is a supplement are not intended to 
 apply. 
 
 2. This act shall take effect on the fourth day of July 
 next succeeding its passage and approval. 
 
 May 2, 1911. Approved by Governor. 
 
 (L. 1911, c. 241) 
 
 An act creating the employers' liability commission and pre- 
 scribing its powers and duties, and requiring reports to 
 be made by the employers of labor upon the operations 
 of the employers' liability law for the information of said 
 commission. 
 
 Be it enacted by the Senate and General Assembly of the State 
 of New Jersey. 
 
 1. The Governor is hereby authorized to appoint six citi- 
 zens of this State as an employers' liability commission, who 
 shall hold their offices for the term of two years and until their 
 successors are appointed and qualified. They shall receive 
 no compensation for their services, but their actual traveling 
 expenses incurred upon the business of the commission shall 
 be paid by the State Treasurer, upon warrants approved by 
 the president of the said commission. The commission shall 
 have power to choose one of their number as president and 
 one of their number as secretary, and shall have power to 
 appoint a clerk. The expenses of the commission, the salary
 
 1020 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 New Jersey 
 
 of the secretary and of the clerk shall be paid from appro- 
 priations made for that purpose in any annual or supplemental 
 appropriation bill. It shall be the duty of the commission 
 to observe in detail, so far as possible, the operations through- 
 out the State of the recent act of the Legislature commonly 
 known as "The Employers' Liability Act," entitled "An 
 act prescribing the liability of an employer to make compen- 
 sation for injuries received by an employe" in the course 
 of employment, establishing an elective schedule of com- 
 pensation and regulating procedure for the determination 
 of liability and compensation thereunder," approved April 
 fourth, one thousand nine hundred and eleven. 
 
 2. From and after the fourth day of July next, when the 
 said law becomes operative, every employer of labor within 
 the State of New Jersey shall report to said commission 
 upon the occurrence of any injury to any of his employe's 
 the name and nationality of the employ 6 so injured, the 
 nature and extent of such injury, whether said injured employ 6 
 and the employer at the time of said injury were subject 
 to the provisions of section one or section two of said act, 
 and the amount of compensation when determined, together 
 with such other facts relating to such injury as the commission 
 may request. The information thus received shall be tab- 
 ulated, from time to time, and the records thereof shall be 
 the private records of the commission; they shall not be 
 made public or open to inspection unless in the opinion of 
 the commission the public interests shall require it and they 
 shall not be used as evidence against any employer in any 
 suit or action at law brought by any employ^ for the recovery 
 of damages. The commission shall hold meetings, from 
 time to time, as they may deem necessary, and shall present 
 to each session of the legislature a report showing the 
 operations under the said act during the preceding year, 
 together with any suggestions or recommendations which 
 they may deem necessary or proper for the improvement
 
 TEXTS OF COMPENSATION ACTS 1021 
 
 Ohio 
 
 of the said act, in order to accomplish with the greatest 
 efficiency the purposes of the said act. 
 
 3. This act shall take effect immediately. Approved by 
 the Governor April 27, 1911. 
 
 OHIO 
 
 (102 Ohio L. 524) 
 
 An act to create a state insurance fund for the benefit of in- 
 jured, and the dependents of killed employes, and to pro- 
 vide for the administration of such fund by a state liability 
 board of awards. 
 
 Be it enacted by the General Assembly of the State of Ohio. 
 SECTION 1. There is hereby created a state liability board 
 of awards, to be composed of three members, not more than 
 two of whom shall belong to the same political party, to be 
 appointed by the governor, within thirty days after the 
 passage of this act, one of which members shall be appointed 
 for the term of two years, one member for four years and one 
 member for six years, and thereafter as their terms expire the 
 governor shall appoint one member for the term of six years. 
 Vacancies shall be filled by appointment by the governor for 
 the unexpired term. 
 
 SEC. 2. Each member of the board shall devote his entire 
 time to the duties of his office and shall not hold any position 
 of trust or profit or engage in any occupation or business in- 
 terfering or inconsistent with his duty as such member, or 
 serve on or under any committee of any political party. 
 
 SEC. 3. Each member of the board shall receive an annual 
 salary of five thousand dollars, payable in the same manner 
 as salaries of state officers are paid. 
 
 SEC. 4. The board shall be in continuous session and open 
 for the transaction of business during all the business hours 
 of each and every day, excepting Sundays and legal holidays. 
 All sessions shall be open to the public, and shall stand and
 
 1022 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 be adjourned without further notice thereof on its records. 
 All proceedings of the board shall be shown on its record of 
 proceedings, which shall be a public record, and shall contain 
 a record of each case considered, and the award made with 
 respect thereto, and all voting shall be had by the calling of 
 each member's name by the secretary and each vote shall be 
 recorded as cast. 
 
 SEC. 5. A majority of the board shall constitute a quorum 
 for the transaction of business, and a vacancy shall not im- 
 pair the right of the remaining members to exercise all the 
 powers of the full board so long as a majority remains. Any 
 investigations, inquiry or hearing which the board is au- 
 thorized to hold, or undertake, may be held or undertaken by 
 or before any one member of the board. All investigations, 
 inquiries, hearings and decisions of the board, and every 
 order made by a member thereof, when approved and con- 
 firmed by a majority of the members, and so shown on its 
 record of proceedings, shall be deemed to be the order of the 
 board. 
 
 SEC. 6. The board shall keep and maintain its office in the 
 city of Columbus, and shall provide a suitable room or 
 rooms, necessary office furniture, supplies, books, periodicals 
 and maps. All necessary expenses shall be audited and paid 
 out of the state treasury. The board may hold sessions at 
 any place within the State. 
 
 SEC. 7. The board may employ a secretary, actuary, 
 accountants, inspectors, examiners, experts, clerks, sten- 
 ographers and other assistants, and fix their compensation. 
 Such employments and compensation shall be first approved 
 by the governor, and shall be paid out of the state treasury. 
 The members of the board, actuaries, accountants, inspectors, 
 examiners, experts, clerks, stenographers and other assistants 
 that may be employed shall be entitled to receive from the 
 state treasury their actual and necessary expenses while 
 traveling in the business of the board. Such expenses shall
 
 TEXTS OF COMPENSATION ACTS 1023 
 
 Ohio 
 
 be itemized and sworn to by the person who incurred the 
 expense, and allowed by the board. 
 
 SEC. 8. The board shall adopt reasonable and proper rules 
 to govern its procedure, regulate and provide for the kind 
 and character of notices, and the services thereof, in cases of 
 accident and injury to employes, the nature and extent of 
 the proofs and evidence, and the method of taking and fur- 
 nishing the same, to establish the right to benefits of com- 
 pensation from the state insurance fund, hereinafter pro- 
 vided for, the forms of application of those claiming to be 
 entitled to benefits or compensation therefrom, the method 
 of making investigations, physical examinations and in- 
 spections, and prescribe the time within which adjudications 
 and awards shall be made. 
 
 SEC. 9. Every employer shall furnish the board, upon 
 request, all information required by it to carry out the pur- 
 poses of this act. The board or any member thereof, or any 
 person employed by the board for that purpose, shall have 
 the right to examine under oath any employer or officer, 
 agent or employe" thereof. 
 
 SEC. 10. Every employer receiving from the board any 
 blank with directions to fill the same, shall cause the same 
 to be properly filled out as to answer fully and correctly all 
 questions therein propounded, and if unable to do so shall 
 give good and sufficient reasons for such failure. Answers 
 to such questions shall be verified under oath and returned to 
 the board within the period fixed by the board for such re- 
 turn. 
 
 SEC. 11. Each member of the board, the secretary and 
 every inspector or examiner appointed by the board shall, 
 for the purposes contemplated by this act, have power to 
 administer oaths, certify to official acts, take depositions, 
 issue subpoenas, compel the attendance of witnesses and the 
 production of books, accounts, papers, records, documents 
 and testimony.
 
 1024 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 SEC. 12. In case of disobedience of any person to comply 
 with the order of the board, or subpoena issued by it as one 
 of its inspectors, or examiners, or on the refusal of a witness 
 to testify to any matter regarding which he may be lawfully 
 interrogated, or refuse to permit an inspection as aforesaid, 
 the probate judge of the county in which the person resides, 
 on application of any member of the board, or any inspector 
 or examiner appointed by it, shall compel obedience by 
 attachment proceedings as for contempt, as in the case of 
 disobedience of the requirements of subpoenas issued from 
 such court on a refusal to testify therein. 
 
 SEC. 13. Each officer who serves such subpoena shall re- 
 ceive the same fees as a sheriff, and each witness who appears, 
 in obedience to a subpoena, before the board or an inspector 
 or examiner, shall receive for his attendance the fees and 
 mileage provided for witnesses in civil cases in courts of 
 common pleas, which shall be audited and paid from the 
 state treasury in the same manner as other expenses are 
 audited and paid, upon the presentation of proper vouchers 
 approved by any two members of the board. No witness 
 subpoenaed at the instance of a party other than the board 
 or an inspector shall be entitled to compensation from the 
 state treasury unless the board shall certify that his testi- 
 mony was 'material to the matter investigated. 
 
 SEC. 14. In an investigation, the board may cause dep- 
 ositions of witnesses residing within or without the State to 
 be taken in the manner prescribed by the law for like dep- 
 ositions in civil actions in the court of common pleas. 
 
 SEC. 15. A transcribed copy of the evidence and proceed- 
 ings, or any specific part thereof, or any investigation, by a 
 stenographer appointed by the board, being certified by such 
 stenographer to be a true and correct transcript of the testi- 
 mony on the investigation, or of a particular witness, or of 
 a specific part thereof, carefully compared by him with his 
 original notes, and to be a correct statement of the evidence
 
 TEXTS OF COMPENSATION ACTS 1025 
 
 Ohio 
 
 and proceedings had on such investigation so purporting to 
 be taken and subscribed, may be received in evidence by 
 the board with the same effect as if such stenographer were 
 present and testified to the facts so certified. A copy of such 
 transcript shall be furnished on demand to any party upon 
 the payment of the fee therefor, as provided for transcript 
 in courts of common pleas. 
 
 SEC. 16. The board shall prepare and furnish blank 
 forms, and provide in its rules for their distribution so that 
 the same may be readily available, of application for benefits 
 or compensation from the state insurance fund, notices to 
 employers, proofs of injury or death, of medical attendance, 
 of employment and wage earnings, and such other blanks as 
 may be deemed proper and advisable, and it shall be the 
 duty of insured employers to constantly keep on hand a 
 sufficient supply of such blanks. 
 
 SEC. 17. The state liability board of awards shall classify 
 employments with respect to their degree of hazard, and 
 determine the risks of the different classes and fix the rates 
 of premium of the risks of the same, based upon the total 
 pay roll and number of employe's in each of said classes of 
 employment, sufficiently large to provide an adequate fund 
 for the compensation provided for in this act, and to create 
 a surplus sufficiently large to guarantee a state insurance 
 fund from year to year. 
 
 SEC. 18. The state liability board of awards shall establish 
 a state insurance fund from premiums paid thereto by em- 
 ployers and employes as herein provided, according to the 
 rates of risk in the classes established by it, as herein pro- 
 vided, for the benefit of employes of employers that have 
 paid the premium applicable to the classes to which they 
 belong and for the benefit of the dependents of such em- 
 ployes, and shall adopt rules and regulations with respect 
 to the collection, maintenance and disbursement of said 
 fund. 
 
 65
 
 1026 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 SEC. 19. The treasurer of state shall be the custodian of 
 the state insurance fund, and all disbursements therefrom 
 shall be paid by him, but upon vouchers signed by any two 
 members of the state liability board of awards. 
 
 SEC. 20. The treasurer of state shall give a separate and 
 additional bond, in such amount as may be fixed by the 
 governor, and with sureties to his approval, conditioned for 
 the faithful performance of his duties as custodian of the 
 state insurance fund herein provided for. 
 
 SEC. 20-1. Any employer who employs five or more work- 
 men or operatives regularly in the same business, or in or 
 about the same establishment who shall pay into the state 
 insurance fund the premiums provided by this act, shall not 
 be liable to respond in damages at common law or by statute, 
 save as hereinafter provided, for injuries or death of any such 
 employe", wherever occurring, during the period covered by 
 such premiums, provided the injured employe has remained 
 in his service with notice that his employer has paid into the 
 state insurance fund the premiums provided by this act; the 
 continuation in the service of such employer with such 
 notice, shall be deemed a waiver by the employe" of his right 
 of action as aforesaid. 
 
 Each employer paying the premiums provided by this act 
 into the state insurance fund shall post in conspicuous places 
 about his place or places of business typewritten or printed 
 notices stating the fact that he has made such payment; and 
 the same, when so posted, shall constitute sufficient notice 
 to his employes of the fact that he has made such payment; 
 and of any subsequent payments he may make after such 
 notices have been posted. 
 
 SEC. 20-2. For the purpose of creating such state in- 
 surance fund, each employer who employs five or more 
 workmen or operatives regularly in the same business, or in 
 or about the same establishment, and his employe's in this 
 State, having elected to accept the provisions of this act,
 
 TEXTS OF COMPENSATION ACTS 1027 
 
 Ohio 
 
 shall pay, on or before January 1, 1912, and semi-annually 
 thereafter, the premiums of liability risk in the classes of 
 employment as may be determined and published by the 
 state liability board of awards. The said employers for them- 
 selves and their employes shall make such payments to the 
 state treasurer of Ohio, who shall receive and place the same 
 to the credit of such state insurance fund. The premiums 
 provided for in this act shall be paid by the employer and 
 employe's in the following proportions, to-wit: Ninety per 
 cent of the premium shall be paid by the employer and ten 
 per cent by the employes. Each employer is authorized to 
 deduct from the pay roll of his employes ten per cent of the 
 said premiums for any premium period in proportion to the 
 pay roll of such employes ; no deduction shall be made except 
 for that portion of the premium period antedating such pay 
 roll. Each employer shall give a receipt to each employe 
 showing the amount which has been deducted and paid 
 into the state insurance fund. 
 
 SEC. 21. The state liability board of awards shall disburse 
 the state insurance fund to such employes of employers as 
 have paid into said fund the premiums applicable to the 
 classes to which they belong, that have been injured in the 
 course of their employment, wheresoever such injury has 
 occurred, and which have not been purposely self-inflicted, 
 or to their dependents in case death has ensued. 
 
 SEC. 21-1. All employers who employ five or more work- 
 men or operatives regularly in the same business, or in or 
 about the same establishment who shall not pay into the 
 state insurance fund the premiums provided by this act, 
 shall be liable to their employes for damages suffered by 
 reason of personal injuries sustained in the course of employ- 
 ment caused by the wrongful act, neglect or default of the 
 employer, or any of the employer's officers, agents or em- 
 ployes, and also to the personal representatives of such 
 employes where death results from such injuries and in such
 
 1028 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 action the defendant shall not avail himself or itself of the 
 following common-law defenses: 
 
 The defense of the fellow-servant rule, the defense of the 
 assumption of risk, or the defense of contributory negligence. 
 
 SEC. 21-2. But where a personal injury is suffered by an 
 employe", or when death results to an employe from personal 
 injuries while in the employ of an employer in the course of 
 employment, and such employer has paid into the state insur- 
 ance fund the premium provided for in this act, and in case 
 such injury has arisen from the willful act of such employer, 
 or any of such employer's officers or agents or from the failure 
 of such employer, or any of such employer's officers or agents, 
 to comply with any municipal ordinance or lawful order of any 
 duly authorized officer, or any statute for the protection of the 
 life or safety of employes, then in such event, nothing in 
 this act contained shall affect the civil liability of such em- 
 ployer, but such injured employe, or his legal representative 
 in case death results from the injury, may, at his option, 
 either claim compensation under this act or institute pro- 
 ceedings in the courts for his damage on account of such 
 injury, and such employer shall not be liable for any injury 
 to any employe", or to his legal representative in case death 
 results, except as provided in this act. 
 
 Every employ^, or legal representative in case death 
 results, who makes application for an award from the state 
 liability board of awards, waives his right to exercise his 
 option to institute proceedings in any court. Every employe" 
 or his legal representative in case death results, who exercises 
 his option to institute proceedings in court as provided in 
 section 21-2, waives his right to any award; except as pro- 
 vided in section 36 of this act. 
 
 SEC. 23. The board shall disburse and pay from the fund, 
 for such injury, to such employes, such amounts for medical, 
 nurse and hospital services and medicines, as it may deem 
 proper, not, however in any case, to exceed the sum of two
 
 TEXTS OF COMPENSATION ACTS 1029 
 
 Ohio 
 
 hundred dollars, in addition to such award to such employe". 
 
 SEC. 24. In case death ensues from the injury reasonable 
 funeral expenses, not to exceed one hundred and fifty dollars, 
 shall be paid from the fund, in addition to such award to 
 such employe. 
 
 SEC. 25. No benefit shall be allowed for the first week 
 after the injury is received, except the disbursement pro- 
 vided for in the next two preceding sections. 
 
 SEC. 26. In case of temporary or partial disability, the 
 employe" shall receive sixty-six and two-thirds per cent 
 of the impairment of his earning capacity during the con- 
 tinuance thereof, not to exceed a maximum of twelve dollars 
 per week, and not less than a minimum of five dollars per 
 week, if the employees wages were less than five dollars per 
 week, then he shall receive his full wages; but not to continue 
 for more than six years from the date of the injury, nor to 
 exceed three thousand four hundred dollars in amount from 
 that injury. 
 
 SEC. 27. In case of permanent total disability the award shall 
 be 66 2 /3% of the average weekly wage, and shall continue 
 until the death of such person so totally disabled, but not to 
 exceed a maximum of twelve dollars per week, and not less 
 than a minimum of five dollars per week, if the employees 
 wages were less than five dollars per week, then he shall 
 receive his full wages. 
 
 SEC. 28. In case the injury causes death within the period 
 of two years the benefits shall be in the amounts and to 
 the persons following: 
 
 1. If there be no dependents, the disbursements from the 
 insurance fund shall be limited to the expense provided for 
 in sections 23 and 24. 
 
 2. If there are wholly dependent persons at the time of 
 the death, the payment shall be sixty-six and two-thirds per 
 cent of the average weekly wage and to continue for the 
 remainder of the period between the date of the death and
 
 1030 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 six years after the date of the injury, and not to amount to 
 more than a maximum of thirty-four hundred dollars, nor 
 less than a minimum of one thousand five hundred dol- 
 lars. 
 
 3. If there are partly dependent persons at the time of 
 the death, the payment shall be sixty-six and two-thirds 
 per cent of the average weekly wage and to continue for 
 all of such portion of the period of six years after the date 
 of the injury, as the board in each case may determine, and 
 not to amount to more than a maximum of thirty-four hun- 
 dred dollars. 
 
 SEC. 29. The benefits, in case of death, shall be paid to 
 such one or more of the dependents of the decedent, for the 
 benefit of all the dependents, as may be determined by the 
 board, which may apportion the benefits among the de- 
 pendents in such manner as it may deem just and equitable. 
 Payment to a dependent subsequent in right may be made, 
 if the board deem proper, and shall operate to discharge all 
 other claims therefor. 
 
 SEC. 30. The dependent or person to whom benefits are 
 paid shall apply the same to the use of the several beneficiaries 
 thereof according to their respective claims upon the decedent 
 for support, in compliance with the finding and direction 
 of the board. 
 
 SEC. 31. The average weekly wage of the injured person 
 at the time of the injury shall be taken as the basis upon 
 which to compute the benefits. 
 
 SEC. 32. If it is established that the injured employ 6 
 was of such age and experience when injured as that under 
 natural conditions his wages would be expected to increase, 
 the fact may be considered in arriving at his average weekly 
 wage. 
 
 SEC. 33. The power and jurisdiction of the board over each 
 case shall be continuing, and it may from time to time make 
 such modification or change with respect to former findings
 
 TEXTS OF COMPENSATION ACTS 1031 
 
 Ohio 
 
 or orders with respect thereto, as, in its opinion, may be justi- 
 fied. 
 
 SEC. 34. The board, under special circumstances, and 
 when the same is deemed advisable, may commute periodical 
 benefits to one or more lump sum payments. 
 
 SEC. 35. Benefits before payment shall be exempt from 
 all claims or creditors and from any attachment or execution, 
 and shall be paid only to such employes or their dependents. 
 
 SEC. 36. The board shall have full power and authority to 
 hear and determine all questions within its jurisdiction, and 
 its decision thereon shall be final. 
 
 Provided, however, in case the final action of such board 
 denies the right of the claimant to participate at all in such 
 fund on the ground that the injury was self-inflicted or on 
 the ground that the accident did not arise in the course of 
 employment, or upon any other ground going to the basis of 
 the claimant's right, then the claimant within thirty (30) 
 days after the notice of the final action of such board may, 
 by filing his appeal in the common pleas court of the county 
 wherein the injury was inflicted, be entitled to a trial in the 
 ordinary way, and be entitled to a jury if he demands it. In 
 such a proceeding, the prosecuting attorney of the county, 
 without additional compensation, shall represent the state 
 liability board of awards, and he shall be notified by the 
 clerk forthwith of the filing of such appeal. 
 
 Within thirty days after filing his appeal, the appellant 
 shall file a petition in the ordinary form against such board 
 as defendant and further pleadings shall be had in said cause 
 according to the rules of civil procedure, and the court, or 
 the jury, under the instructions of the court, if a jury is 
 demanded, shall determine the right of the claimant; and, 
 if they determine the right in his favor, shall fix his com- 
 pensation within the limits and under the rules prescribed 
 in this act; and any final judgment so obtained shall be paid 
 by the state liability board of awards out of the state insur-
 
 1032 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Ohio 
 
 ance fund in the same manner as such awards are paid by 
 such board. 
 
 The costs of such proceeding, including a reasonable at- 
 torney's fee to the claimant's attorney to be fixed by the 
 trial judge, shall be taxed against the unsuccessful party. 
 Either party shall have the right to prosecute error as in the 
 ordinary civil cases. 
 
 SEC. 36-1. Such board shall not be bound by the usual 
 cojnmon-law or statutory rules of evidence or by any tech- 
 nical or formal rules of procedure, other than as herein pro- 
 vided; but may make the investigation in such manner as in 
 their judgment, is best calculated to ascertain the substantial 
 rights of the parties and to carry out justly the spirit of this 
 act. 
 
 SEC. 37. The board may make necessary expenditures to 
 obtain statistical and other information to establish the 
 classes provided for in section 17. The salaries and compen- 
 sation of the secretary, and all actuaries, accountants, in- 
 spectors, examiners, experts, clerks and other assistants, 
 and all other expenses of the board herein authorized includ- 
 ing the premium to be paid by the state treasurer for the bond 
 to be furnished by him, shall be paid out of the state treasury 
 upon vouchers, signed by two of the members of such board, 
 presented to the auditor of state, who shall issue his warrant 
 therefor as in other cases. 
 
 SEC. 38. No provision of this act relating to the amount 
 of compensation shall be considered by, or called to the 
 attention of the jury on the trial of any action to recover 
 damages as herein provided. 
 
 SEC. 39. Annually on or before the 15th day of November, 
 such board, under the oath of at least two of its members, 
 shall make a report to the governor which shall include a 
 statement of the number of awards made by it, and a general 
 statement of the causes of the accidents leading to the in- 
 juries for which the awards were made, a detailed statement
 
 TEXTS OF COMPENSATION ACTS 1033 
 
 Rhode Island and Providence Plantations 
 
 of the disbursements from the expense fund, and the condi- 
 tion of its respective funds, together with any other matters 
 which such board deems it proper to call to the attention 
 of the governor, including any recommendations it may have 
 to make. 
 
 SEC. 40. The expense of such board in carrying out the 
 provisions of this act shall be paid until January 1, 1912, out 
 of the general revenue of the State not otherwise appropriated. 
 Such expense shall not exceed twenty-five thousand dollars 
 in addition to the salaries of members of such board. 
 
 SEC. 41. The expenses of such board in carrying out the 
 provisions of this act shall be paid from January 1st, 1912, 
 to January 1st, 1913, out of the general revenue fund of the 
 State not otherwise appropriated. Such expense shall not 
 exceed one hundred thousand dollars in addition to the salary 
 of the members. 
 
 S. J. VINING, 
 Speaker of the House of Representatives. 
 
 H. L. NICHOLS, 
 President of the Senate. 
 Passed May 31st, 1911. 
 Approved June 15th, 1911. 
 
 JUDSON HARMON, 
 
 Governor 
 
 RHODE ISLAND AND PROVIDENCE PLANTATIONS 
 
 (L. 1912, c. 000) 
 (Senate No. 1) 
 
 An Act relative to payments to employes for personal in- 
 juries received in the course of their employment, and to 
 the prevention of such injuries.
 
 1034 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 ARTICLE I 
 ABROGATION OP REMEDIES AND DEFENSES 
 
 REMOVAL OF DEFENSES 
 
 SECTION 1. In an action to recover damages for personal 
 injury sustained by accident by an employe arising out of 
 and in the course of his employment, or for death resulting 
 from personal injury so sustained, it shall not be a defense: 
 (a) That the employe was negligent; (6) that the injury was 
 caused by the negligence of a fellow employe"; (c) that the 
 employe has assumed the risk of the injury. 
 
 EXCEPTIONS 
 
 SEC. 2. The provisions of this act shall not apply to ac- 
 tions to recover damages for personal injuries, or for death 
 resulting from personal injuries, sustained by employe's en- 
 gaged in domestic service or agriculture. 
 
 EXCEPTIONS 
 
 SEC. 3. The provisions of this act shall not apply to em- 
 ployers who employ five or less workmen or operatives 
 regularly in the same business, but such employers may, by 
 complying with the provisions of section 5 of this article 
 become subject to the provisions of this act. 
 
 EMPLOYER WHO ELECTS TO PAY COMPENSATION 
 
 SEC. 4. The provisions of section 1 of this Article shall not 
 apply to actions to recover damages for personal injuries, 
 or for death resulting from personal injuries sustained by 
 employes of an employer who has elected to become subject 
 to the provisions of this act as provided in section 5 of this 
 Article.
 
 TEXTS OF COMPENSATION ACTS 1035 
 
 Rhode Island and Providence Plantations 
 
 ELECTION, HOW MADE 
 
 SEC. 5. Such election on the part of the employer shall be 
 made by filing with the commissioner of industrial statistics 
 a written statement to the effect that he accepts the pro- 
 visions of this act, and by giving reasonable notice of such 
 election to his workmen by posting and keeping continu- 
 ously posted copies of such statement in conspicuous places 
 about the place where his workmen are employed, the filing 
 of which statement and the giving of which notice shall 
 operate to subject such employer to the provisions of this 
 act and all acts amendatory thereof for the term of one year 
 from the date of the filing of such statement, and thereafter, 
 without further act on his part, for successive terms of one 
 year, each, unless such employer shall, at least sixty days 
 prior to the expiration of such first or any succeeding year, 
 file with said commissioner a notice in writing to the effect 
 that he desires to withdraw his election to be subject to the 
 provisions of this act and shall give reasonable notice to his 
 workmen as above provided. Blank forms of election and 
 withdrawal as herein provided, shall be furnished by said 
 commissioner. 
 
 ELECTION BY EMPLOY^ 
 
 SEC. 6. An employe of an employer who shall have elected 
 to become subject to the provisions of this act as provided 
 in section 5 of this Article shall be held to have waived his 
 right of action at common law to recover damages for per- 
 sonal injuries, if he shall not have given his employer at the 
 time of his contract of hire notice in writing that he claimed 
 such right, and within ten days thereafter have filed a copy 
 thereof with the commissioner of industrial statistics, or, if 
 the contract of hire was made before the employer so elected, 
 if the employe shall not have given the said notice and filed
 
 1036 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 the same with said commissioner within ten days after notice 
 by the employer, as above provided, of such election; and 
 such waiver shall continue in force for the term of one year, 
 and thereafter without further act on his part, for successive 
 terms of one year, each, unless such employe shall at least 
 sixty days prior to the expiration of such first or any suc- 
 ceeding year, file with the said commissioner a notice in 
 writing to the effect that he desires to claim his said right of 
 action at common law and within ten days thereafter shall 
 give notice thereof to his employer. A minor working at an 
 age legally permitted under the laws of this State shall be 
 deemed sui juris for the purpose of this act and no other 
 person shall have any cause of action or right to compensa- 
 tion for an injury to such minor employe" except as expressly 
 provided in this act; but if said minor shall have a parent 
 living or a guardian, such parent or guardian, as the case 
 may be, may give the notice and file a copy of the same as 
 herein provided by this section, and such notice shall bind 
 the minor in the same manner that adult employes are bound 
 under the provisions of this act. In case no such notice is 
 given, such minor shall be held to have waived his right of 
 action at common law to recover damages for personal in- 
 juries. Any employe, or the parent or guardian of any 
 minor employe", who has given notice to the employer that 
 he claimed his right of action at common law may waive 
 such claim by a notice in writing which shall take effect five 
 days after the delivery to the employer or his agent. 
 
 IN LIEU OF OTHER REMEDIES 
 
 SEC. 7. The right to compensation for an injury, and the 
 remedy therefor granted by this act, shall be in lieu of all 
 rights and remedies as to such injury now existing, either 
 at common law or otherwise; and such rights and remedies 
 shall not accrue to employes entitled to compensation under 
 this act while it is in effect.
 
 TEXTS OF COMPENSATION ACTS 1037 
 
 Rhode Island and Providence Plantations 
 
 ARTICLE II 
 
 PAYMENTS 
 TO WHOM MADE 
 
 SECTION 1. If an employe who has not given notice of his 
 claim of common-law rights of action or who has given such 
 notice and has waived the same, as provided in section 6 of 
 Article I, receives a personal injury by accident arising out 
 of and in the course of his employment, he shall be paid 
 compensation, as hereinafter provided, by the employer 
 who shall have elected to become subject to the provisions 
 of this act. 
 
 WILLFUL INJURY 
 
 SEC. 2. No compensation shall be allowed for the injury 
 or death of an employe where it is proved that his injury or 
 death was occasioned by his willful intention to bring about 
 the injury or death of himself or of another, or that the same 
 resulted from his intoxication while on duty. 
 
 CONTINGENT FEES 
 
 SEC. 3. Contingent fees of attorneys for services under 
 this act shall be subject to the approval of the superior court. 
 
 WHEN COMPENSATION BEGINS 
 
 SEC. 4. No compensation except as provided by section 12 
 of this Article shall be paid under this act for any injury 
 which does not incapacitate the employe for a period of at 
 least two weeks from earning full wages, but, if such in- 
 capacity extends beyond the period of two weeks, compensa- 
 tion shall begin on the fifteenth day after the injury. 
 
 MEDICAL AID 
 
 SEC. 5. During the first two weeks after the injury the 
 employer shall furnish reasonable medical and hospital
 
 1038 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 services, and medicines when they are needed, the amount 
 of the charge for such services to be fixed, in case of the 
 failure of the employer and employe to agree, by the superior 
 court. 
 
 INJURIES RESULTING IN DEATH 
 
 SEC. 6. If death results from the injury, the employer 
 shall pay the dependents of the employe wholly dependent 
 upon his earnings for support at the time of his injury a 
 weekly payment equal to one-half his average weekly wages, 
 earnings or salary, but not more than ten dollars nor less 
 than four dollars a week, for a period of three hundred weeks 
 from the date of the injury: Provided, however, that, if the 
 dependent of the employe to whom the compensation shall 
 be payable upon his death is the widow of such employe, 
 upon her death the compensation thereafter payable under 
 this act shall be paid to the child or children of the deceased 
 employe, including adopted and stepchildren, under the age 
 of eighteen years, or over said age but physically or mentally 
 incapacitated from earning, dependent upon the widow at 
 the time of her death. In case there is more than one child 
 thus dependent, the compensation shall be divided equally 
 among them. If the employe leaves dependents only partly 
 dependent upon his earnings for support at the time of his 
 injury, the employer shall pay such dependents for a period 
 of three hundred weeks from the date of the injury a weekly 
 compensation equal to the same proportion of the weekly 
 payments herein provided for the benefit of persons wholly 
 dependent as the amount contributed annually by the em- 
 ploye to such partial dependents bears to the annual earn- 
 ings of the deceased at the time of injury. When weekly 
 payments have been made to an injured employe before his 
 death, the compensation to dependents shall begin from the 
 date of the last of such payments, but shall not continue 
 more than three hundred weeks from the date of the injury. 
 Provided, however, that, if the deceased leaves no dependents
 
 TEXTS OF COMPENSATION ACTS 1039 
 
 Rhode Island and Providence Plantations 
 
 at the time of the injury, the employer shall not be liable to 
 pay compensation under this act except as specifically pro- 
 vided in section 9 of this Article. 
 
 DEPENDENTS 
 
 SEC. 7. The following persons shall be conclusively pre- 
 sumed to be wholly dependent for support upon a deceased 
 employe" : 
 
 (a) A wife upon a husband with whom she lives or upon 
 whom she is dependent at the time of his death. 
 
 (6) A husband upon a wife with whom he lives or upon 
 whom he is dependent at the time of her death. 
 
 (c) A child or children, including adopted and stepchil- 
 dren, under the age of eighteen years, or over said age, but 
 physically or mentally incapacitated from earning, upon the 
 parent with whom he is or they are living or upon whom he 
 or they are dependent at the time of the death of such parent, 
 there being no surviving dependent parent. In case there is 
 more than one child thus dependent, the compensation 
 hereunder shall be divided equally among them. 
 
 In all other cases questions of entire or partial dependency 
 shall be determined in accordance with the fact as the fact 
 may have been at the time of the injury. In such other 
 cases, if there is more than one person wholly dependent, 
 the compensation shall be divided equally among them, and 
 persons partly dependent, if any, shall receive no part 
 thereof during the period in which compensation is paid to 
 persons wholly dependent. If there is no one wholly de- 
 pendent and more than one person partly dependent, the 
 compensation shall be divided among them according to the 
 relative extent of their dependency. 
 
 DEPENDENTS HOW DETERMINED 
 
 SEC. 8. No person shall be considered a dependent unless 
 he is a member of the employe's family or next of kin wholly
 
 1040 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 or partly dependent upon the wages, earnings or salary of the 
 employe for support at the time of the injury. 
 
 FUNERAL EXPENSES 
 
 SEC. 9. If the employe dies as a result of the injury leaving 
 no dependents at the time of the injury, the employer shall 
 pay, in addition to any compensation provided for in this 
 act the reasonable expense of his last sickness and burial, 
 which shall not exceed two hundred dollars. 
 
 TOTAL INCAPACITY 
 
 SEC. 10. While the incapacity for work resulting from the 
 injury is total, the employer shall pay the injured employe a 
 weekly compensation equal to one-half his average weekly 
 wages, earnings or salary, but not more than ten dollars nor 
 less than four dollars a week; and in no case shall the period 
 covered by such compensation be greater than five hundred 
 weeks from the date of the injury. In the following cases it 
 shall, for the purposes of this section, be conclusively pre- 
 sumed that the injury resulted in permanent total disability, 
 to wit : The total and irrecoverable loss of sight in both eyes, 
 the loss of both feet at or above the ankle, the loss of both 
 hands at or above the wrist, the loss of one hand and one 
 foot, an injury to the spine resulting in permanent and com- 
 plete paralysis of the legs or arms, and an injury to the skull 
 resulting in incurable imbecility or insanity. 
 
 PARTIAL INCAPACITY 
 
 SEC. 11. While the incapacity for work resulting from the 
 injury is partial, the employer shall pay the injured employe 
 a weekly compensation equal to one-half the difference be- 
 tween his average weekly wages, earnings or salary, before 
 the injury and the average weekly wages, earnings or salary 
 which he is able to earn thereafter, but not more than ten 
 dollars a week; and in no case shall the period covered by
 
 TEXTS OF COMPENSATION ACTS 1041 
 
 Rhode Island and Providence Plantations 
 
 such compensation be greater than three hundred weeks from 
 the date of the injury. 
 
 SPECIFIC INJURIES 
 
 SEC. 12. In case of the following specified injuries the 
 amounts named in this section shall be paid in addition to all 
 other compensation provided for in this act. 
 
 (a) For the loss by severance of both hands at or above 
 the wrist, or both feet at or above the ankle, or the loss of 
 one hand and one foot, or the entire and irrecoverable loss of 
 the sight of both eyes, one-half of the average weekly wages, 
 earnings or salary of the injured person, but not more than 
 ten dollars nor less than four dollars a week, for a period of 
 one hundred weeks. 
 
 (6) For the loss by severance of either hand at or above 
 the wrist, or either foot at or above the ankle, or the entire 
 and irrecoverable loss of the sight of either eye, one-half the 
 average weekly wages, earnings or salary of the injured per- 
 son, but not more than ten dollars nor less than four dollars 
 a week, for a period of fifty weeks. 
 
 (c) For the loss by severance at or above the second joint 
 of two or more fingers, including thumbs, or toes, one-half 
 the average weekly wages, earnings or salary of the injured 
 person but not more than ten dollars nor less than four 
 dollars a week, for a period of twenty-five weeks. 
 
 (d) For the loss by severance of at least one phalange of 
 a finger, thumb, or toe, one-half the average weekly wages, 
 earnings or salary of the injured person, but not more than 
 ten dollars nor less than four dollars a week, for a period of 
 twelve weeks. 
 
 AVERAGE WEEKLY WAGE DEFINED 
 
 SEC. 13. The "average weekly wages, earnings, or salary" 
 of an injured employe" shall be computed as follows: 
 
 (a) If the injured employe has worked in the same em- 
 66
 
 1042 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 ployment in which he was working at the time of the acci- 
 dent, whether for the same employer or not, during sub- 
 stantially the whole of the year immediately preceding his 
 injury, his "average weekly wages" shall be three hundred 
 times the average daily wages, earnings or salary which he 
 has earned in such employment during the days when so 
 employed and working the number of hours constituting a 
 full working day in such employment, divided by fifty-two. 
 But where the employe" is employed concurrently by two or 
 more employers, for one of whom he works at one time and 
 for another of whom he works at another time, his "average 
 weekly wages" shall be computed as if the wages, earnings 
 or salary received by him from all such employers were 
 wages, earnings or salary earned in the employment of the 
 employer for whom he was working at the time of the acci- 
 dent. 
 
 (6) If the injured employe* has not so worked in such em- 
 ployment during substantially the whole of such immediately 
 preceding year, his "average weekly wages" shall be three 
 hundred times the average daily wages, earnings, or salary 
 which an employe of the same class working substantially 
 the whole of such immediately preceding year in the same 
 or a similar employment, in the same or a neighboring place, 
 has earned in such employment during the days when so 
 employed and working the number of hours constituting a 
 full working day in such employment divided by fifty-two. 
 
 (c) In cases where the foregoing methods of arriving at the 
 "average weekly wages, earnings, or salary" of the injured 
 employe cannot reasonably and fairly be applied, such 
 "average weekly wages" shall be taken at such sum as, 
 having regard to the previous wages, earnings or salary of 
 the injured employe, and of other employes of the same or 
 most similar class, working in the same or most similar em- 
 ployment in the same or a neighboring locality, shall rea- 
 sonably represent the weekly earning capacity of the injured
 
 TEXTS OF COMPENSATION ACTS 1043 
 
 Rhode Island and Providence Plantations 
 
 employe at the time of the accident in the employment in 
 which he was working at such time. 
 
 (d) Where the employer has been accustomed to pay to 
 the employ^ a sum to cover any special expense incurred by 
 said employe by the nature of his employment, the sum so 
 paid shall not be reckoned as part of the employe's wages, 
 earnings or salary. 
 
 (e) The fact that an employe has suffered a previous in- 
 jury, or received compensation therefor, shall not preclude 
 compensation for a later injury or for death; but in deter- 
 mining the compensation for the later injury or death, his 
 "average weekly wages" shall be such sum as will reasonably 
 represent his weekly earning capacity at the time of the later 
 injury, in the employment in which he was working at such 
 time, and shall be arrived at according to, and subject to the 
 limitations of, the previous provisions of this section. 
 
 CONTRIBUTIONS BY EMPLOYE 
 
 SEC. 14. No savings or insurance of the injured employ^, 
 independent of this act, shall be taken into consideration in 
 determining the compensation to be paid hereunder, nor shall 
 benefits derived from any other source than the employer 
 be considered in fixing the compensation under this act. 
 
 COMPENSATION TO WHOM PAID 
 
 SEC. 15. The compensation payable under this act in case 
 of the death of the injured employe shall be paid to his legal 
 representatives; or, if he has no legal representative, to his 
 dependents entitled thereto, or, if he leaves no such de- 
 pendents, to the person to whom the expenses for the burial 
 and last sickness are due. If the payment is made to the 
 legal representative of the deceased employe, it shall be paid 
 by him to the dependents or other persons entitled thereto 
 under this act. All payments of compensation under this 
 act shall cease upon the death of the employe from a cause
 
 1044 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 other than or not induced by the injury for which he is re- 
 ceiving compensation. 
 
 MINOKS AND MENTALLY INCOMPETENT 
 
 SEC. 16. In case an injured employe is mentally incom- 
 petent, or, where death results from the injury, in case any 
 of his dependents entitled to compensation hereunder are 
 mentally incompetent or minors at the time when any right, 
 privilege or election accrues to him or them under this act, 
 his conservator, guardian, or next friend may, in his behalf, 
 claim and exercise such right, privilege, or election, and no 
 limitation of time in this act provided shall run so long as 
 such incompetent or minor has no conservator or guardian. 
 
 NOTICE OF INJURY 
 
 SEC. 17. No proceedings for compensation for an injury un- 
 der this act shall be maintained unless a notice of the injury 
 shall have been given to the employer within thirty days after 
 the happening thereof; and unless the claim for compensation 
 with respect to such injury shall have been made within one 
 year after the occurrence of the same, or, in case of the death 
 of the employe, or in the event of his physical or mental in- 
 capacity, within one year after death or the removal of such 
 physical or mental incapacity. 
 
 SEC. 18. Such notice shall be in writing and shall state in 
 ordinary language the nature, time, place, and cause of the 
 injury, and the name and address of the person injured 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 representa- 
 tive, or by a dependent, or by a person in behalf of either. 
 
 SEC. 19. Such notice shall be served upon the employer, 
 or upon one employer, if there are more employers than one, 
 or, if the employer is a corporation, upon any officer or agent 
 upon whom process may be served, by delivering the same 
 to the person on whom it is to be served, or by leaving it at
 
 TEXTS OF COMPENSATION ACTS 1045 
 
 Rhode Island and Providence Plantations 
 
 his last known residence or place of business, or by sending 
 it by registered mail addressed to the person to be served, 
 or, in the case of a corporation, to the corporation itself, at 
 his or its last known residence or place of business; and such 
 mailing of the notice shall constitute completed service. 
 
 SEC. 20. A notice given under the provisions of this act 
 shall not be held invalid or insufficient by reason of any 
 inaccuracy in stating the nature, time, place or cause of the 
 injury, or the name and address of the person injured, unless 
 it is shown that it was the intention to mislead and the em- 
 ployer was in fact misled thereby. Want of notice shall not 
 be a bar to proceedings under this act, if it be shown that the 
 employer or his agent had knowledge of the injury, or that 
 failure to give such notice was due to accident, mistake, or 
 unforeseen cause. 
 
 EXAMINATION OF INJURED 
 
 SEC. 21. The employe shall, after an injury, at reasonable 
 times during the continuance of his disability, if so requested 
 by his employer, submit himself to an examination by a 
 physician or surgeon authorized to practice medicine under 
 the laws of the state, furnished and paid for by the employer. 
 The employe shall have the right to have a physician, pro- 
 vided and paid for by himself, present at such examination. 
 
 Any justice of the superior court may, at any time after 
 an injury, on the petition of the employer or employe, ap- 
 point a competent and impartial physician or surgeon to act 
 as a medical examiner, and the reasonable fees of such medi- 
 cal examiner as fixed by the justice appointing him shall be 
 paid by the party moving for such appointment. 
 
 Such medical examiner being first duly sworn to the 
 faithful performance of his duties before the justice appoint- 
 ing him or clerk of the court shall thereupon, and as often 
 as necessary, examine such injured employe" in order to 
 determine the nature, extent, and probable duration of the
 
 1046 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 injury. Such medical examiner shall file a report of every 
 examination made of such employe in the office of the clerk 
 of the superior court having jurisdiction of the matter as 
 provided in section 16 of Article III of this act, and such 
 report shall be produced in evidence in any hearing or pro- 
 ceeding to determine the amount of compensation due such 
 employe under the provisions of this act. If such employe 
 refuses to submit himself for any examination provided for 
 in this act, or in any way obstructs any such examination, 
 his rights to compensation shall be suspended and his com- 
 pensation during such period of suspension may be forfeited. 
 
 NO WAIVER OF RIGHTS 
 
 SEC. 22. No agreement by an employe", except as provided 
 in Article IV, to waive his rights to compensation under this 
 act shall be valid. 
 
 CLAIMS NOT ASSIGNABLE 
 
 SEC. 23. No claims for compensation under this act, or 
 under any alternative scheme permitted by Article IV of 
 this act, shall be assignable, or subject to attachment, or 
 liable in any way for any debts. 
 
 CLAIMS PREFERRED 
 
 SEC. 24. The claim for compensation under this act, or 
 under any alternative scheme permitted by Article IV of this 
 act, and any decree on any such claim, shall be entitled to a 
 preference over the unsecured debts of the employer here- 
 after contracted to the same amount as the wages of labor 
 are now preferred by the laws of this state; but nothing 
 herein shall be construed as impairing any lien which the 
 employe may have acquired. 
 
 PAYMENT OF LUMP SUM 
 
 SEC. 25. In case payments have continued for not less 
 than six months either party may, upon due notice to the
 
 TEXTS OF COMPENSATION ACTS 1047 
 
 Rhode Island and Providence Plantations 
 
 other party, petition the superior court for an order com- 
 muting the future payments to a lump sum. Such petition 
 shall be considered by the superior court and may be sum- 
 marily granted where it is shown to the satisfaction of the 
 court that the payment of a lump sum in lieu of future 
 weekly payments will be for the best interest of the person or 
 persons receiving or dependent upon such compensation, or 
 that the continuance of weekly payments will, as compared 
 with lump-sum payments, entail undue expense or undue 
 hardship upon the employer liable therefor, or that the 
 person entitled to compensation has removed or is about to 
 remove from the United States. Where the commutation 
 is ordered the superior court shall fix the lump sum to be paid 
 at an amount which will equal the total sum of the probable 
 future payments, capitalized at their present value upon the 
 basis of interest calculated at five per centum per annum 
 with annual rests. Upon paying such amount the employer 
 shall be discharged from all further liability on account of 
 the injury or death, and be entitled to a duly executed re- 
 lease, upon filing which, or other due proof of payment, the 
 liability of such employer under any agreement, award, find- 
 ings, or decree shall be discharged of record. 
 
 ARTICLE III 
 
 PROCEDURE 
 AGREEMENT AS TO COMPENSATION 
 
 SECTION 1. If the employer and the employe" reach an 
 agreement in regard to compensation under this act, a 
 memorandum of such agreement signed by the parties shall 
 be filed in the office of the clerk of the superior court having 
 jurisdiction of the matter as provided in section 16 of this 
 Article. The clerk shall forthwith docket the same in a book 
 kept for that purpose, and shall thereupon present said agree-
 
 1048 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 ment to a justice of the superior court, and when approved 
 by the justice the agreement shall be enforceable by said 
 superior court by any suitable process, including executions 
 against goods, chattels, and real estate, and including pro- 
 ceedings for contempt for willful failure or neglect to obey 
 the provisions of said agreement. No appeal shall lie from 
 the agreement thus approved unless upon allegation that 
 such agreement had been procured by fraud or coercion. 
 Such agreement shall be approved by the justice only when 
 its terms conform to the provisions of this act. 
 
 When death has resulted from the injury and the de- 
 pendents of the deceased employ^ entitled to compensation 
 are, or the apportionment thereof among them is, in dis- 
 pute, such agreement may relate only to the amount of 
 compensation. 
 
 FAILURE TO AGREE 
 
 SEC. 2. If the employer and employ 6 fail to reach an agree- 
 ment in regard to compensation under this act, either em- 
 ployer or employe", and when death has resulted from the 
 injury and the dependents of the deceased employe entitled 
 to compensation are, or the apportionment thereof among 
 them is in dispute, any person in interest may file in the 
 office of the clerk of the superior court having jurisdiction 
 of the matter as provided in section 16 of this Article, a 
 petition in the nature of a petition in equity setting forth 
 the names and residences of the parties, the facts relating 
 to employment at the time of the injury, the cause, extent 
 and character of the injury, the amount of wages, earnings, 
 or salary received at the time of the injury, and the knowl- 
 edge of the employer or notice of the occurrence of the injury 
 and such other facts as may be necessary and proper for 
 the information of the court, and shall state the matter in 
 dispute and the claims of the petitioner with reference 
 thereto.
 
 TEXTS OF COMPENSATION ACTS 1049 
 
 Rhode Island and Providence Plantations 
 
 COfY OF PETITION 
 
 SEC. 3. Within four days after the filing of the petition, a 
 copy thereof, attested by the petitioner or his attorney, 
 shall be served upon the respondent in the same manner as 
 a writ of summons in a civil action. 
 
 ANSWER TO PETITION 
 
 SEC. 4. Within ten days after the filing of the petition, 
 the respondent shall file an answer to said petition, together 
 with a copy thereof for the use of the petitioner, which shall 
 state the claims of the respondent with reference to the mat- 
 ter in dispute as disclosed by the petition. No pleadings 
 other than petition and answer shall be required to bring 
 the cause to a hearing for final determination. The superior 
 court may grant further time for filing the answer and allow 
 amendments of said petition and answer at any stage of the 
 proceedings. If the respondent do not file an answer, the 
 cause shall proceed without formal default or decree pro 
 confesso. If the respondent be an infant or person under 
 disability, the superior court shall appoint a guardian ad 
 litem for such infant or person under disability. Such guar- 
 dian ad litem may be appointed on any court day after 
 service of the copy referred to in section 3 of this Article, 
 upon motion of any party after notice given as required for 
 motions made in the superior court, and opportunity to said 
 infant or person under disability to be heard in regard to 
 the choice of such guardian ad litem. The guardian ad 
 litem so appointed shall file the answer required by this 
 section. 
 
 ASSIGNMENT FOR HEARING 
 
 SEC. 5. The petition shall be in order for assignment for 
 hearing on the motion day which occurs next after fifteen 
 days from the filing of the petition. Upon the days upon 
 which said petition shall be in order for hearing it shall take
 
 1050 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 precedence of other cases upon the calendar, except cases for 
 tenements let or held at will or by sufferance. 
 
 HEARING 
 
 SEC. 6. The justice to whom said petition shall be re- 
 ferred by the court shall hear such witnesses as may be pre- 
 sented by each party, and in a summary manner decide the 
 merits of the controversy. His decision shall be filed in 
 writing with the clerk, and a decree shall be entered thereon. 
 Such decree shall be enforceable by said superior court by 
 any suitable process, including executions against goods, 
 chattels, and real estate, and including proceedings for con- 
 tempt for willful failure or neglect to obey the provisions of 
 said decree. Such decree shall contain findings of fact, 
 which, in the absence of fraud, shall be conclusive. The 
 superior court may award as costs the actual expenditures, 
 or such part thereof as to the court shall seem meet, but not 
 including counsel fees, and shall include such costs in its 
 decree. The superior court may refuse to award costs, and 
 no costs shall be awarded against an infant or person under 
 disability or against a guardian ad litem. 
 
 APPEAL 
 
 SEC. 7. Any person aggrieved by the final decree of the 
 superior court under this act may appeal to the supreme 
 court upon any question of law or equity decided adversely 
 to the appellant by said final decree or by any proceeding or 
 ruling prior thereto appearing of record, the appellant hav- 
 ing first had his objections noted to any adverse rulings 
 made during the progress of the trial at the time such rulings 
 were made, if made in open court and not otherwise of record. 
 The appellant shall take the following steps: 
 (a) Within ten days after entry of said final decree he 
 shall file a claim of appeal and, if a transcript of the testi- 
 mony and rulings or any part thereof be desired, a written 
 request therefor.
 
 TEXTS OF COMPENSATION ACTS 1051 
 
 Rhode Island and Providence Plantations 
 
 (6) Within such time as the justice of the superior court 
 who heard the petition, or, in case of his inability to act from 
 any cause within such time as any other justice thereof shall 
 fix, whether by original fixing of the time, or by extension 
 thereof, or by a new fixing after any expiration thereof, the 
 appellant shall file reasons of appeal stating specifically all 
 the questions of law or equity decided adversely to him 
 which he desires to include hi his reasons of appeal, together 
 with a transcript of as much of the testimony and rulings 
 as may be required. The supreme court may allow amend- 
 ments of said reasons of appeal. Upon the filing of said 
 reasons of appeal and transcript, the clerk of the superior 
 court shall present the transcript to the justice who heard 
 the cause for allowance. The justice after hearing and 
 examination, shall restore the transcript to the files of the 
 clerk with a certificate of his action thereon made within 
 twenty days after filing the transcript, unless the twentieth 
 day shall fall in vacation, in which event the certificate 
 may be filed at any time before the first Monday in the fol- 
 lowing month of October. 
 
 If the transcript be not allowed by the justice who heard 
 the cause within the time prescribed, or objection to his 
 allowance be made by any party, the correctness of the 
 transcript may be determined by the supreme court by peti- 
 tion filed within thirty days after filing the transcript, unless 
 the thirtieth day shall fall in vacation, in which event the 
 correctness of the transcript may be determined by petition 
 filed on or before the tenth day after the first Monday in the 
 following month of October. In all other respects than in 
 time of filing the same course shall be followed as provided 
 in section 21 of Chapter 298 of the General Laws for estab- 
 lishing the truth of exceptions. 
 
 APPEAL 
 
 SEC. 8. Upon the restoration of the transcript to the files, 
 or, if there be no transcript, then upon the filing of the rea-
 
 1052 BRADBURY'S WORKMEN s COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 sons of appeal, the clerk of the superior court shall certify 
 the cause and all papers to the supreme court. 
 
 APPEAL SUSPENDS DECREE 
 
 SEC. 9. The claim of an appeal shall suspend the opera- 
 tion of the decree appealed from, but, in case of default in 
 taking the procedure required, such suspension shall cease 
 and the superior court upon motion of any party shall pro- 
 ceed as if no claim of appeal had been made, unless it be 
 made to appear to the superior court that the default no 
 longer exists. 
 
 MOTION DAY 
 
 SEC. 10. Any court day in the supreme court shall be a 
 motion day for the purpose of hearing a motion to assign 
 the appeal for hearing. 
 
 DECISION 
 
 SEC. 11. The supreme court after hearing any appeal shall 
 determine the same, and affirm, reverse or modify the decree 
 appealed from, and may itself take, or cause to be taken by 
 the superior court, such further proceedings as shall seem 
 just. If a new decree shall be necessary, it shall be framed 
 by the supreme court for entry by the superior court. There- 
 upon the cause shall be remanded to the superior court for 
 such further proceedings as shall be required. 
 
 EXECUTION 
 
 SEC. 12. No process for the execution of a final decree of 
 the superior court from which an appeal may be taken shall 
 issue until the expiration of ten days after the entry thereof, 
 unless all parties against whom such decree is made waive an 
 appeal by a writing filed with the clerk or by causing an 
 entry thereof to be made on the docket.
 
 TEXTS OF COMPENSATION ACTS 1053 
 
 Rhode Island and Providence Plantations 
 
 QUESTIONS OF LAW 
 
 SEC. 13. If, in the course of the proceedings in any cause, 
 any question of law shall arise which in the opinion of the 
 superior court is of such doubt and importance, and so af- 
 fects the merits of the controversy, that it ought to be de- 
 termined by the supreme court before further proceedings, 
 the superior court may certify such question to the supreme 
 court for that purpose, and stay all further proceedings 
 except such as are necessary to preserve the rights of the 
 parties. 
 
 REVIEW OF DECREES 
 
 SEC. 14. At any time before the expiration of two years 
 from the date of the approval of an agreement, or the entry 
 of a decree fixing compensation, but not afterwards, and be- 
 fore the expiration of the period for which compensation has 
 been fixed by such agreement or decree, but not afterwards, 
 any agreement, award, findings or decree may be from time 
 to time reviewed by the superior court upon the application 
 of either party, after due notice to the other party, upon the 
 ground that the incapacity of the injured employe has sub- 
 sequently ended, increased, or diminished. Upon such re- 
 view the court may increase, diminish, or discontinue the 
 compensation from the date of the application for review, in 
 accordance with the facts, or make such other order as the 
 justice of the case may require, but shall order no change of 
 the status existing prior to the application for review. The 
 finding of the court upon such review shall be served on the 
 parties and filed with the clerk of the court having jurisdic- 
 tion, in like time and manner and subject to like disposition 
 as in the case of original decrees; provided that an agreement 
 for compensation may be modified at any time by a subse- 
 quent agreement between the parties approved by the su- 
 perior court in the same manner as original agreements in
 
 1054 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 regard to compensation are required to be approved by the 
 provisions of Section 1 of Article III of this act. 
 
 PROCEDURE 
 
 SEC. 15. The superior court shall prescribe forms and 
 make suitable orders as to procedure adapted to secure a 
 speedy, efficient and inexpensive disposition of all proceed- 
 ings under this act; and in making such orders said court 
 shall not be bound by the provisions of the General Laws 
 relating to practice. In the absence of such orders, special 
 orders shall be made in each case. 
 
 ACTIONS WHERE BROUGHT 
 
 SEC. 16. Proceedings shall be brought either in the county 
 where the accident occurred or in the county where the em- 
 ployer or employe lives or has a usual place of business. 
 The court where any proceeding is brought shall have power 
 to grant a change of venue. 
 
 ACTIONS NOT TO ABATE 
 
 SEC. 17. No proceedings under this act shall abate be- 
 cause of the death of the petitioner, but may be prosecuted 
 by his legal representative or by any person entitled to com- 
 pensation by reason of said death, under the provisions of 
 this act. 
 
 CLAIM WHEN BARRED 
 
 SEC. 18. An employe's claim for compensation under this 
 act shall be barred unless an agreement or a petition, as 
 provided in this Article, shall be filed within two years after 
 the occurrence of the injury, or, in case of the death of the 
 employe, or, in the event of his physical or mental incapacity, 
 within two years after the death of the employe or the re- 
 moval of such physical or mental incapacity.
 
 TEXTS OF COMPENSATION ACTS 1055 
 
 Rhode Island and Providence Plantations 
 MONTHLY PAYMENTS 
 
 SEC. 19. If an employe receiving a weekly payment un- 
 der this act shall cease to reside in the state, or, if his resi- 
 dence at the time of the accident is in an adjoining state, 
 the superior court, upon the application of either party, 
 may, in its discretion, having regard to the welfare of the 
 employe and the convenience of the employer, order such 
 payment to be made monthly or quarterly instead of weekly. 
 
 COURT SETTLES QUESTIONS 
 
 SEC. 20. All questions arising under this act, if not settled 
 by agreement of the parties interested therein, shall, except 
 as otherwise herein provided, be determined by the superior 
 court. 
 
 LIABILITY OF OTHER THAN EMPLOYER 
 
 SEC. 21. Where the injury for which compensation is pay- 
 able under this act was caused under circumstances creating 
 a legal liability in some person other than the employer to 
 pay damages in respect thereof, the employe may take pro- 
 ceedings both against that person to recover damages and 
 against any person liable to pay compensation under this act 
 for such compensation, but shall not be entitled to receive 
 both damages and compensation; and if the employe has 
 been paid compensation under this act, the person by whom 
 the compensation was paid shall be entitled to indemnity 
 from the person so liable to pay damages as aforesaid, and, 
 to the extent of such indemnity, shall be subrogated to the 
 rights of the employe to recover damages therefor. 
 
 ARTICLE IV 
 
 ALTERNATIVE SCHEMES PERMITTED 
 EMPLOYER AND EMPLOYE MAY AGREE 
 
 SECTION 1. Any employer may enter into an agreement 
 with his employes in any employment to which this act ap-
 
 1056 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Rhode Island and Providence Plantations 
 
 plies to provide a scheme of compensation, benefit, or insur- 
 ance, in lieu of the compensation provided for in this act, 
 subject to the approval of the superior court. Such approval 
 shall be granted only on condition that the scheme proposed 
 provides as great benefits as those provided by this act; and, 
 if the scheme provides for contributions by employes, it 
 shall confer additional benefits at least equivalent to these 
 contributions. If such a scheme meets with the approval of 
 said court, the clerk shall issue a certificate enabling the 
 employer to contract with any or all of his employes in em- 
 ployments to which this act applies to substitute such 
 scheme for the provisions of this act for a period of not more 
 than five years. 
 
 AGREEMENT MUST CONTAIN 
 
 SEC. 2. No scheme which provides for contributing by 
 employe's shall be so certified which does not contain suitable 
 provisions for the equitable distribution of any money or 
 securities held for the purpose of the scheme, after due pro- 
 vision has been made to discharge the liabilities already 
 incurred, if and when such certificate is revoked or the 
 scheme otherwise terminated. 
 
 AGREEMENT REVOKED 
 
 SEC. 3. If at any time the scheme no longer fulfills the re* 
 quirements of this Article, or is not fairly administered, or 
 any other valid and substantial reason therefor exists, the 
 superior court, on reasonable notice to the interested parties, 
 shall revoke the certificate and the scheme shall thereby be 
 terminated. 
 
 ARTICLE V 
 
 MISCELLANEOUS PROVISIONS 
 
 SECTION 1. In this act, unless the context otherwise re- 
 quires :
 
 TEXTS OF COMPENSATION ACTS 1057 
 
 Rhode Island and Providence Plantations 
 
 (a) "Employer" includes any person, copartnership, cor- 
 poration or voluntary association, and the legal representa- 
 tive of a deceased employer. 
 
 (6) "Employe" means any person who has entered into 
 the employment of, or works under contract of service or 
 apprenticeship with, an employer, and whose remuneration 
 does not exceed eighteen hundred dollars a year. It does not 
 include a person whose employment is of a casual nature, 
 and who is employed otherwise than for the purpose of the 
 employer's trade or business. Any reference to an employe 
 who has been injured shall, where the employe is dead, in- 
 clude a reference to his dependents as hereinbefore denned, 
 or to his legal representative, or, where he is a minor, or in- 
 competent, to his conservator or guardian. 
 
 SEC. 2. Nothing in this act shall affect the liability of the 
 employer to a fine or penalty under any other statute. 
 
 SEC. 3. The provisions of this act shall not apply to in- 
 juries sustained, or accidents which occur, prior to the taking 
 effect hereof. 
 
 SEC. 4. If any section of this act shall be declared uncon- 
 stitutional or invalid, such unconstitutionality or invalidity 
 shall in no way affect the validity of any other portion thereof 
 which can be given reasonable effect without the part so 
 declared unconstitutional or invalid. 
 
 SEC. 5. In all cases where an employer and employe" shall 
 have elected to become subject to the provisions of this act, 
 the provisions of section 14 of Chapter 283 of the General 
 Laws shall not apply while this act is in effect. 
 
 SEC. 6. All acts and parts of acts inconsistent herewith 
 are hereby repealed. 
 
 SEC. 7. This act may be cited as "Workmen's Compensa- 
 tion Act." 
 
 SEC. 8. This act shall take effect on the first day of Octo- 
 ber, nineteen hundred and twelve. 
 
 Approved by Governor, April 29, 1912. 
 67
 
 1058 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 WASHINGTON 
 
 (L. 1911, c. 74) 
 
 An act relating to the compensation of injured workmen in 
 our industries, and the compensation to their dependents 
 where such injuries result in death, creating an industrial 
 insurance department, making an appropriation for its 
 administration, providing for the creation and disburse- 
 ment of funds for the compensation and care of workmen 
 injured in hazardous employment, providing penalties 
 for the nonobservance of regulations for the prevention 
 of such injuries and for violation of its provisions, assert- 
 ing and exercising the police power in such cases, and, 
 except in certain specified cases, abolishing the doctrine 
 of negligence as a ground for recovery of damages against 
 employers, and depriving the courts of jurisdiction of 
 such controversies, and repealing sections 6594, 6595 
 and 6596 of Remington and Ballinger's Annotated Codes 
 and Statutes of Washington, relating to employes in 
 factories, mills or workshops where machinery is used, 
 actions for the recovery of damages and prescribing a 
 punishment for violation thereof. 
 
 Be it enacted by the Legislature of the State of Washing- 
 ton: 
 
 DECLARATION OF POLICE POWER 
 
 SECTION 1. The common law system governing the remedy 
 of workmen against employers for injuries received in hazard- 
 ous work is inconsistent with modern industrial conditions. 
 In practice it proves to be economically unwise and unfair. 
 Its administration has produced the result that little of 
 the cost of the employer has reached the workman and that 
 little only at large expense to the public. The remedy of 
 the workman has been uncertain, slow and inadequate.
 
 TEXTS OF COMPENSATION ACTS 1059 
 
 Washington 
 
 Injuries in such works, formerly occasional, have become 
 frequent and inevitable. The welfare of the State depends 
 upon its industries, and even more upon the welfare of its 
 wage-worker. The State of Washington, therefore, exer- 
 cising herein its police and sovereign power, declares that 
 all phases of the premises are withdrawn from private con- 
 troversy, and sure and certain relief for workmen, injured 
 in extra hazardous work, and their families and dependents 
 is hereby provided regardless of questions of fault and 
 to the exclusion of every other remedy, proceeding or com- 
 pensation, except as otherwise provided in this act; and 
 to that end all civil actions and civil causes of action for 
 such personal injuries and all jurisdiction of the courts of 
 the State over such causes are hereby abolished, except as 
 in this act provided. 
 
 ENUMERATION OF EXTRA HAZARDOUS WORKS 
 
 SEC. 2. There is a hazard in all employment, but certain 
 employments have come to be, and to be recognized as 
 being inherently constantly dangerous. This act is intended 
 to apply to all such inherently hazardous works and occupa- 
 tions, and it is the purpose to embrace all of them, which 
 are within the legislative jurisdiction of the State, in the 
 following enumeration, and they are intended to be em- 
 braced within the term "extra hazardous" wherever used 
 in this act, to-wit : 
 
 Factories, mills and workshops where machinery is used; 
 printing, electrotyping, photo-engraving and stereotyping 
 plants where machinery is used; foundries, blast furnaces, 
 mines, wells, gas works, waterworks, reduction works, brew- 
 eries, elevators, wharves, docks, dredges, smelters, powder 
 works; laundries operated by power; quarries; engineer- 
 ing works; logging, lumbering and ship building operations; 
 logging, street and interurban railroads; buildings being 
 constructed, repaired, moved or demolished; telegraph, 
 telephone, electric light or power plants or lines, steam
 
 1060 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 heating or power plants, steamboats, tugs, ferries and 
 railroads. If there be or arise any extra hazardous occupa- 
 tion or work other than those hereinabove enumerated, it 
 shall come under this act, and its rate of contribution to 
 the accident fund hereinafter established, shall be, until 
 fixed by legislation, determined by the department herein- 
 after created, upon the basis of the relation which the risk 
 involved bears to the risks classified in section 4. 
 
 DEFINITIONS 
 
 SEC. 3. In the sense of this act words employed mean 
 as here stated, to-wit : 
 
 Factories mean undertakings in which the business of 
 working at commodities is carried on with power-driven 
 machinery, either in manufacture, repair or change, and 
 shall include the premises, yard and plant of the concern. 
 
 Workshop means any plant, yard, premises, room or place 
 wherein power-driven machinery is employed and manual 
 labor is exercised by way of trade for gain or otherwise in or 
 incidental to the process of making, altering, repairing, 
 printing or ornamenting, finishing or adapting for sale or 
 otherwise any article or part of article, machine or thing, 
 over which premises, room or place the employer of the 
 person working therein has the right of access or control. 
 
 Mill means any plant, premises, room or place where 
 machinery is used, any process of machinery, changing, 
 altering or repairing any article or commodity for sale or 
 otherwise, together with the yards and premises which are 
 a part of the plant, including elevators, warehouses and 
 bunkers. 
 
 Mine means any mine where coal, clay, ore, mineral, 
 gypsum or rock is dug or mined underground. 
 
 Quarry means an open cut from which coal is mined, or 
 clay, ore, mineral, gypsum, sand, gravel or rock is cut or 
 taken for manufacturing, building or construction.
 
 TEXTS OF COMPENSATION ACTS 1061 
 
 Washington 
 
 Engineering work means any work of construction, im- 
 provement or alteration or repair of buildings, structures, 
 streets, highways, sewers, street railways, railroads, log- 
 ging roads, interurban railroads, harbors, docks, canals; 
 electric, steam or water power plants; telegraph and tele- 
 phone plants and lines; electric light or power lines, and 
 includes any other works for the construction, alteration or 
 repair of which machinery driven by mechanical power is 
 used. 
 
 Except when otherwise expressly stated, employer means 
 any person, body of persons, corporate or otherwise, and the 
 legal personal representatives of a deceased employer, all 
 while engaged in this State in any extra hazardous work. 
 
 Workman means every person in this State, who, after 
 September 30, 1911, is engaged in the employment of an 
 employer carrying on or conducting any of the industries 
 scheduled or classified in section 4, whether by way of man- 
 ual labor or otherwise, and whether upon the premises or 
 at the plant or, he being in the course of his employment, 
 away from the plant of his employer: Provided, however, 
 That if the injury to a workman occurring away from the 
 plant of his employer is due to the negligence or wrong of 
 another not in the same employ, the injured workman, or 
 if death result from the injury, his widow, children or de- 
 pendents, as the case may be, shall elect whether to take 
 under this act or seek a remedy against such other, such 
 election to be in advance of any suit under this section; and 
 if he take under this act, the cause of action against such 
 other shall be assigned to the State for the benefit of the 
 accident fund; if the other choice is made, the accident fund 
 shall contribute only the deficiency, if any, between the 
 amount of recovery against such third person actually col- 
 lected, and the compensation provided or estimated by this 
 act for such case. Any such cause of action assigned to the 
 State may be prosecuted, or compromised by the depart-
 
 1062 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 ment, in its discretion. Any compromise by the workman 
 of any such suit, which would leave a deficiency to be made 
 good out of the accident fund, may be made only with the 
 written approval of the department. 
 
 Any individual employer or any member or officer of any 
 corporate employer who shall be carried upon the pay roll at 
 a salary or wage not less than the average salary or wage 
 named in such pay roll and who shall be injured, shall be 
 entitled to the benefit of this act as and under the same cir- 
 cumstances as and subject to the same obligations as a work- 
 man. 
 
 Dependent means any of the following named relatives of 
 a workman whose death results from any injury and who 
 leaves surviving no widow, widower, or child under the age 
 of sixteen years, viz.; invalid child over the age of sixteen 
 years, daughter, between sixteen and eighteen years of age, 
 father, mother, grandfather, grandmother, step-father, step- 
 mother, grandson, granddaughter, step-son, step-daughter, 
 brother, sister, half-sister, half-brother, niece, nephew, who, 
 at the time of the accident, are dependent, in whole or in 
 part, for their support upon the earnings of the workman. 
 Except where otherwise provided by treaty, aliens, other 
 than father or mother, not residing within the United States 
 at the time of the accident, are not included. 
 
 Beneficiary means a husband, wife, child or dependent of 
 a workman, in whom shall vest a right to receive payment 
 under this act. 
 
 Invalid means one who is physically or mentally incapac- 
 itated from earning. 
 
 The word "child," as used in this act, includes a post- 
 humous child, a child legally adopted prior to the injury, 
 and an illegitimate child legitimated prior to the injury. 
 
 The words injury or injured, as used in this act, refer only 
 to an injury resulting from some fortuitous event as dis- 
 tinguished from the contraction of disease.
 
 TEXTS OF COMPENSATION ACTS 1063 
 
 Washington 
 
 SCHEDULE OF CONTRIBUTION 
 
 SEC. 4. Insomuch as industry should bear the greater 
 portion of the burden of the cost of its accidents, each em- 
 ployer shall, prior to January 15th of each year, pay into the 
 state treasury, in accordance with the following schedule, a 
 sum equal to a percentage of his total pay roll for that year, 
 to-wit (the same being deemed the most accurate method 1 of 
 equitable distribution of burden in proportion to relative 
 hazard) : 
 
 Construction Work 
 
 Tunnels; bridges; trestles; sub-aqueous works; ditches 
 and canals (other than irrigation without blasting) ; 
 dock excavation; fire escapes; sewers; house moving; 
 
 house wrecking 065 
 
 Iron, or steel frame structures or parts of structures . . .080 
 Electric light or power plants or systems; telegraph or 
 
 telephone systems; pile driving; steam railroads. . . .050 
 Steeples, towers or grain elevators, not metal framed; 
 dry-docks without excavation; jetties; breakwaters; 
 chimneys; marine railways; waterworks or systems; 
 electric railways with rock work or blasting; blast- 
 ing; erecting fireproof doors or shutters 050 
 
 Steam heating plants; tanks, water towers or wind- 
 mills, not metal frames 040 
 
 Shaft sinking 060 
 
 Concrete buildings; freight or passenger elevators; 
 fireproofing of buildings; galvanized iron or tin 
 works; gas works, or systems; marble, stone or brick 
 work; road making with blasting; roof work; safe 
 moving; slate work; outside plumbing work; metal 
 
 smokestacks or chimneys 050 
 
 Excavations not otherwise specified ; blast furnaces . . . .040 
 Street or other grading; cable or electric street railways
 
 1064 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 without blasting; advertising signs; ornamental 
 metal work in buildings 035 
 
 Ship or boat building or wrecking with scaffolds; float- 
 ing docks 045 
 
 Carpenter work not otherwise specified 035 
 
 Installation of steam boilers or engines; placing wire in 
 conduits; installing dynamos; putting up belts for 
 machinery; marble, stone or tile setting, inside work; 
 mantel setting; metal ceiling work; mill or ship 
 wrighting; painting of buildings or structures; in- 
 stallation of automatic sprinklers; ship or boat rig- 
 ging; concrete laying in floors, foundations or street 
 paving; asphalt laying; covering steam pipes or boil- 
 ers; installation of machinery not otherwise specified .030 
 
 Drilling wells; installing electrical apparatus or fire 
 alarm systems in buildings; house heating or ventil- 
 ating systems; glass setting; building hot houses; 
 lathing; paper hanging; plastering; inside plumbing; 
 wooden stair building; road making 020 
 
 Operation (Including Repair Work) of 
 
 (All combinations of material take the higher rate when 
 
 not otherwise provided.) 
 
 Logging railroads; railroads; dredges; interurban 
 electric railroads using third rail system; dry or 
 floating docks 050 
 
 Electric light or power plants; interurban electric rail- 
 roads not using third rail system; quarries 040 
 
 Street railways, all employes; telegraph or telephone 
 systems; stone crushing; blasting furnaces; smelters; 
 coal mines; gas works; steamboats; tugs; ferries. . . .030 
 
 Mines, other than coal; steam heating or power 
 
 plants 025 
 
 Grain elevators; laundries; waterworks; paper or pulp 
 mills; garbage works 020
 
 TEXTS OF COMPENSATION ACTS 1065 
 
 Washington 
 
 Factories Using Power-Driven Machinery 
 
 Stamping tin or metal 045 
 
 Bridge work; railroad car or locomotive making or re- 
 pairing; cooperage; logging with or without machin- 
 ery; saw mills; shingle mills; staves; veneer; box; 
 lath; packing cases; sash, door or blinds; barrel; 
 keg; pail; basket; tub; wooden ware or wooden 
 fibre ware; rolling mills; making steam shovels or 
 dredges; tanks; water towers; asphalt; building 
 material not otherwise specified; fertilizer; cement; 
 stone with or without machinery; kindling wood; 
 masts and spars with or without machinery; can- 
 neries, metal stamping extra; creosoting works; 
 pile treating works 025 
 
 Excelsior; iron, steel, copper, zinc, brass or lead 
 articles or wares not otherwise specified; working in 
 wood not otherwise specified; hardware; tile; brick; 
 terra cotta; fire clay; pottery; earthenware; porce- 
 lain ware ; peat fuel ; brickettes 020 
 
 Breweries; bottling works; boiler works; foundries; 
 
 machine shops not otherwise specified 020 
 
 Cordage; working in food stuffs, including oils, fruits 
 and vegetables; working in wool, cloth, leather, 
 paper, broom, brush, rubber or textiles not otherwise 
 specified 015 
 
 Making jewelry, soap, tallow, lard, grease, condensed 
 milk 015 
 
 Creameries; printing; electrotyping; photo-engraving; 
 
 lithographing 015 
 
 Miscellaneous Work 
 
 Stevedoring; longshoring 030 
 
 Operating stock yards, with or without railroad entry; 
 packing houses .025
 
 1066 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 Wharf operation; artificial ice, refrigerating or cold 
 storage plants; tanneries; electric systems not other- 
 wise specified 020 
 
 Theater stage employe's 015 
 
 Fire works manufacturing 050 
 
 Powder works 100 
 
 The application of this act as between employers and work- 
 men shall date from and include the first day of October, 
 1911. The payment for 1911 shall be made prior to the day 
 last named, and shall be preliminarily collected upon the pay 
 roll of the last preceding three months of operation. At the 
 end of each year an adjustment of accounts shall be made 
 upon the basis of the actual pay roll. Any shortage shall be 
 made good on or before February 1st, following. Every 
 employer who shall enter into business at any intermediate 
 day shall make his payment for the initial year or portion 
 thereof before commencing operation; its amount shall be 
 calculated upon his estimated pay roll, an adjustment shall 
 be made on or before February 1st of the following year in 
 the manner above provided. 
 
 For the purpose of such payments accounts shall be kept 
 with each industry in accordance with the classification 
 herein provided and no class shall be liable for the depletion 
 of the accident fund from accidents happening in any other 
 class. Each class shall meet and be liable for the accidents 
 occurring in such class. There shall be collected from each 
 class as an initial payment into the accident fund as above 
 specified on or before the 1st day of October, 1911, one-fourth 
 of the premium of the next succeeding year, and one-twelfth 
 thereof at the close of each month after December, 1911: 
 Provided, Any class having sufficient funds credited to its 
 account at the end of the first three months or any month 
 thereafter, to meet the requirements of the accident fund, 
 that class shall not be called upon for such month. In case
 
 TEXTS OF COMPENSATION ACTS 1067 
 
 Washington 
 
 of accidents occurring in such class after lapsed payment 
 or payments said class shall pay the said lapsed or deferred 
 payments commencing at the first lapsed payment, as may 
 be necessary to meet such requirements of the accident fund. 
 
 The fund thereby created shall be termed the "accident 
 fund" which shall be devoted exclusively to the purpose 
 specified for it in this act. 
 
 In that the intent is that the fund created under this sec- 
 tion shall ultimately become neither more or less than self- 
 supporting, exclusive of the expense of administration, the 
 rates in this section named are subject to future adjustment 
 by the legislature, and the classifications to rearrangement 
 following any relative increase or decrease of hazard shown by 
 experience. 
 
 It shall be unlawful for the employer to deduct or obtain 
 any part of the premium required by this section to be by 
 him paid from the wages or earnings of his workmen or 
 any of them, and the making or attempt to make any such 
 deduction shall be a gross misdemeanor. If, after this act 
 shall have come into operation, it is shown by experience 
 under the act, because of poor or careless management, any 
 establishment or work is unduly dangerous in comparison 
 with other like establishments or works, the department 
 may advance its classification of risks and premium rates 
 hi proportion to the undue hazard. In accordance with the 
 same principle, any such increase in classification or premium 
 rate, shall be subject to restoration to the schedule rate. 
 Any such change in classification of risks or premium rates, 
 or any change caused by change in the class of work, occurring 
 during the year shall, at the time of the annual adjustment, 
 be adjusted by the department in proportion to its duration 
 in accordance with the schedule of this section. If, at the 
 end of any year, it shall be seen that the contribution to the 
 accident fund by any class of industry shall be less than the 
 drain upon the fund on account of that class, the deficiency
 
 1068 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 shall be made good to the fund on the 1st day of February 
 of the following year by the employers of that class in pro- 
 portion to their respective payments for the past year. 
 
 For the purposes of such payment and making good of 
 deficit, the particular classes of industry shall be as fol- 
 lows: 
 
 CONSTRUCTION WORK 
 
 Class 1. Tunnels; sewer; shaft sinking; drilling wells. 
 
 Class 2. Bridges; mill wrighting; trestles; steeples, towers 
 or grain elevators not metal framed; tanks, water towers, 
 wind-mills not metal framed. 
 
 Class 3. Sub-aqueous works; canal other than irrigation 
 or docks with or without blasting; pile driving; jetties; 
 breakwaters; marine railways. 
 
 Class 4. House moving; house wrecking; safe moving. 
 
 Class 5. Iron or steel frame structures or parts of structures ; 
 fire escapes; erecting fire proof doors or shutters; blast 
 furnaces; concrete chimneys; freight or passenger elevators; 
 fire proofing of buildings; galvanized iron or tin work; 
 marble, stone or brick work; roof work; slate work; plumbing 
 work; metal smoke stack or chimneys; advertising signs; 
 ornamental metal work in buildings; carpenter work not 
 otherwise specified; marble, stone or tile setting; mantel 
 setting ; metal ceiling work ; painting of buildings or structures ; 
 concrete laying in floors or foundations, glass setting; building 
 hot houses; lathing; paper hanging; plastering; wooden star 
 building. 
 
 Class 6. Electric light and power plants or system; tel- 
 egraph or telephone systems; cable or electric railways with 
 or without rock work or blasting; waterworks or systems; 
 steam heating plants; gas works or systems; installation of 
 steam boilers or engines; placing wires in conduits; installing 
 dynamos; putting up belts for machinery; installation of 
 automatic sprinklers; covering steam pipes or boilers; in- 
 stallation of machinery not otherwise specified; installing
 
 TEXTS OF COMPENSATION ACTS 1069 
 
 Washington 
 
 electrical apparatus or fire alarm systems in buildings; house 
 heating or ventilating systems. 
 
 Class 7. Steam railroads; logging railroads. 
 
 Class 8. Road making; street or other grading; concrete 
 laying in street paving; asphalt laying. 
 
 Class 9. Ship or boat building with scaffolds ; ship wrighting ; 
 ship or boat rigging; floating docks. 
 
 Class 10. Logging; saw mills; shingle mills; lath mills; 
 masts and spars with or without machinery. 
 
 Class 12. Dredges; dry or floating docks. 
 
 Class 13. Electric light or power plants or systems; steam 
 heat or power plants or systems; electric systems not other- 
 wise specified. 
 
 Class 14. Street railways. 
 
 Class 15. Telegraph systems; telephone systems. 
 
 Class 16. Coal mines. 
 
 Class 17. Quarries; stone crushing; mines other than coal. 
 
 Class 18. Blast furnaces; smelters; rolling mills. 
 
 Class 19. Gas works. 
 
 Class 20. Steamboats; tugs; ferries. 
 
 Class 21. Grain elevators. 
 
 Class 22. Laundries. 
 
 Class 23. Waterworks. 
 
 Class 24. Paper or pulp mills. 
 
 Class 25. Garbage works; fertilizer. 
 
 FACTORIES (USING POWER-DRIVEN MACHINERY) 
 
 Class 26. Stamping tin or metal. 
 
 Class 27. Bridge work; making steam shovels or dredges; 
 tanks; water towers. 
 
 Class 28. Railroad car or locomotive making or repairing. 
 
 Class 29. Cooperage; staves; veneer; box packing cases; 
 sash [,] door or blinds; barrel; keg; pail; basket; tub; wood
 
 1070 BEADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 ware or wood fibre ware; kindling wood; excelsior; working 
 in wood not otherwise specified. 
 
 Class 30. Asphalt. 
 
 Class 31. Cement; stone with or without machinery; 
 building material not otherwise specified. 
 
 Class 32. Canneries of fruits or vegetables. 
 
 Class 33. Canneries of fish or meat products. 
 
 Class 34. Iron, steel, copper, zinc, brass or lead articles 
 or wares; hardware; boiler works; foundries; machine shops 
 not otherwise specified. 
 
 Class 35. Tile ; brick ; terra cotta ; fire clay ; pottery ; earthen- 
 ware; porcelain ware. 
 
 Class 36. Peat fuel; brickettes. 
 
 Class 37. Breweries; bottling works. 
 
 Class 38. Cordage; working in wool, cloth, leather, paper, 
 brush, rubber or textile not otherwise specified. 
 
 Class 39. Working in food stuffs, including oils, fruits, 
 vegetables. 
 
 Class 40. Condensed milk; creameries. 
 
 Class 41. Printing, electrotyping; photo-engraving; en- 
 graving; lithographing; making jewelry. 
 
 Class 42. Stevedoring; longshoring; wharf operation. 
 
 Class 43. Stock yards; packing houses; making soap, 
 tallow, lard, grease ; tanneries. 
 
 Class 44. Artificial ice, refrigerating or cold storage plants. 
 
 Class 45. Theatre stage employe's. 
 
 Class 46. Fire works manufacturing; powder works. 
 
 Class 47. Cresoting works; pile treating works. 
 
 If a single establishment or work comprises several oc- 
 cupations listed in this section in different risk classes, the 
 premium shall be computed according to the pay roll of each 
 occupation if clearly separable; otherwise an average rate 
 of premium shall be charged for the entire establishment, 
 taking into consideration the number of employe's and the 
 relative hazards. If an employer besides employing work-
 
 TEXTS OF COMPENSATION ACTS 1071 
 
 Washington 
 
 men in extra hazardous employment shall also employ work- 
 men in employment not extra hazardous the provisions of 
 this act shall apply only to the extra hazardous departments 
 and employments and the workmen employed therein. In 
 computing the pay roll the entire compensation received 
 by every workman employed in extra hazardous employ- 
 ment shall be included, whether it be in the form of salary; 
 wage, piece work, overtime, or any allowance in the way of 
 profit-sharing, premium or otherwise, and whether payable 
 in money, board, or otherwise. 
 
 SCHEDULE OF AWARDS 
 
 SEC. 5. Each workman who shall be injured whether 
 upon the premises or at the plant or, he being in the 
 course of his employment, away from the plant of his 
 employer, or his family or dependents in case of death 
 of the workman, shall receive out of the accident fund com- 
 pensation in accordance with the following schedule, and 
 except as in this act otherwise provided, such payment shall 
 be in lieu of any and all rights of action whatsoever against 
 any person whomsoever. 
 
 COMPENSATION SCHEDULE 
 
 (a) Where death results from the injury the expenses 
 of burial shall be paid in all cases, not to exceed $75.00 in any 
 case, and 
 
 (1) If the workman leaves a widow or invalid widower, 
 a monthly payment of $20.00 shall be made throughout the 
 life of the surviving spouse, to cease at the end of the month 
 in which remarriage shall occur; and the surviving spouse 
 shall also receive $5.00 per month for each child of the 
 deceased under the age of sixteen years at the time of the 
 occurrence of the injury until such minor child shall reach 
 the age of sixteen years, but the total monthly payment 
 under this paragraph (1) of subdivision (a) shall not exceed
 
 1072 BRADBUBY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 $35.00. Upon remarriage of a widow she shall receive, once 
 and for all, a lump sum equal to twelve times her monthly 
 allowance, viz.: the sum of $240.00, but the monthly pay- 
 ment for the child or children shall continue as before. 
 
 (2) If the workman leaves no wife or husband, but a 
 child or children under the age of sixteen years, a monthly 
 payment of $10.00 shall be made to each such child until 
 such child shall reach the age of sixteen years, but the total 
 monthly payment shall not exceed $35.00, and any deficit 
 shall be deducted proportionately among the beneficiaries. 
 
 (3) If the workman leaves no widow, widower, or child 
 under the age of sixteen years, but leaves a dependent or 
 dependents, a monthly payment shall be made to each de- 
 pendent equal to fifty per cent of the average monthly support 
 actually received by such dependent from the workman dur- 
 ing the twelve months next preceding the occurrence of the 
 injury, but the total payment to all dependents in any case 
 shall not exceed $20.00 per month. If any dependent is 
 under the age of sixteen years at the time of the occurrence 
 of the injury, the payment to such dependent shall cease 
 when such dependent shall reach the age of sixteen years. 
 The payment to any dependent shall cease if and when, 
 under the same circumstances, the necessity creating the 
 dependency would have ceased if the injury had not happened. 
 
 If the workman is under the age of twenty-one years and 
 unmarried at the time of his death, the parents or parent 
 of the workman shall receive $20.00 per month for each month 
 after his death until the time at which he would have arrived 
 at the age of twenty-one years. 
 
 (4) In the event a surviving spouse receiving monthly 
 payments shall die, leaving a child or children under the 
 age of sixteen years, the sum he or she shall be receiving 
 on account of such child or children shall be thereafter, 
 until such child shall arrive at the age of sixteen years, paid 
 to the child increased 100 per cent, but the total to all
 
 TEXTS OF COMPENSATION ACTS 1073 
 
 Washington 
 
 children shall not exceed the sum of thirty-five dollars per 
 month. 
 
 (b) Permanent total disability means the loss of both 
 legs or both arms, or one leg and one arm, total loss of eye- 
 sight, paralysis or other condition permanently incapacitating 
 the workman from performing any work at any gainful 
 occupation. 
 
 When permanent total disability results from the injury 
 the workman shall receive monthly during the period of 
 such disability: 
 
 (1) If unmarried at the time of the injury, the sum of 
 $20.00. 
 
 (2) If the workman have a wife or invalid husband, but 
 no child under the age of sixteen years, the sum of $25.00. 
 If the husband is not an invalid, the monthly payment of 
 $25.00 shall be reduced to $15.00. 
 
 (3) If the workman have a wife or husband and a child 
 or children under the age of sixteen years, or, being a widow 
 or widower, have any such child or children, the monthly 
 payment provided in the preceding paragraph shall be in- 
 creased by five dollars for each such child until such child 
 shall arrive at the age of sixteen years, but the total monthly 
 payment shall not exceed thirty-five dollars. 
 
 (c) If the injured workman die during the period of total 
 disability, whatever the cause of death, leaving a widow, 
 invalid widower or child under the age of sixteen years, 
 the surviving widow or invalid widower shall receive twenty 
 dollars per month until death or remarriage, to be increased 
 five dollars per month for each child under the age of sixteen 
 years until such child shall arrive at the age of sixteen years 
 but if such child is or shall be without father or mother, such 
 child shall receive ten dollars per month until arriving at 
 the age of sixteen years. The total combined monthly 
 payment under this paragraph shall in no case exceed thirty- 
 five dollars. Upon remarriage the payments on account 
 
 68
 
 1074 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 of a child or children shall continue as before to the child 
 or children. 
 
 (d) When the total disability is only temporary, the 
 schedule of payment contained in paragraphs (1), (2) and 
 (3) of the foregoing subdivision (d) shall apply so long as 
 the total disability shall continue, increased 50 per cent 
 for the first six months of such continuance, but in no case 
 shall the increase operate to make the monthly payment 
 exceed sixty per cent of the monthly wage (the daily wage 
 multiplied by twenty-six) the workman was receiving at 
 the time of his injury. As soon as recovery is so complete 
 that the present earning power of the workman, at any 
 kind of work, is restored to that existing at the time of the 
 occurrence of the injury the payments shall cease. If and 
 so long as the present earning power is only partially restored 
 the payments shall continue in the proportion which the 
 new earning power shall bear to the old. No compensation 
 shall be payable out of the accident fund unless the loss of 
 earning power shall exceed five per cent. 
 
 (e) For every case of injury resulting in death or per- 
 manent total disability it shall be the duty of the department 
 to forthwith notify the state treasurer, and he shall set apart 
 out of the accident fund a sum of money for the case, to be 
 known as the estimated lump value of the monthly payments 
 provided for it, to be calculated upon the theory that a 
 monthly payment of twenty dollars, to a person thirty 
 years of age, is equal to a lump sum payment, according to 
 the expectancy of life as fixed by the American Mortality 
 Table, of four thousand dollars, but the total in no case to 
 exceed the sum of four thousand dollars. The state treasurer 
 shall invest said sum at interest in the class of securities 
 provided by law for the investment of the permanent school 
 fund, and out of the same and its earnings shall be paid the 
 monthly installments and any lump sum payment then or 
 thereafter arranged for the case. Any deficiency shall be
 
 TEXTS OF COMPENSATION ACTS 1075 
 
 Washington 
 
 made good out of, and any balance or overplus shall revert 
 to the accident fund. The state treasurer shall keep accurate 
 account of all such segregations of the accident fund, and 
 may borrow from the main fund to meet monthly pay- 
 ments pending conversion into cash of any security and, 
 in such case shall repay such temporary loan out of the cash 
 realized from the security. 
 
 (f) Permanent partial disability means the loss of either 
 one foot, one leg, one hand, one arm, one eye, one or more 
 fingers, one or more toes, any dislocation where ligaments 
 are severed, or any other injury known in surgery to be 
 permanent partial disability. For any permanent partial 
 disability resulting from an injury, the workman shall rer 
 ceive compensation in a lump sum in an amount equal to 
 the extent of the injury, to be decided in the first instance 
 by the department, but not in any case to exceed the sum 
 of $1,500.00. The loss of one major arm at or above the 
 elbow shall be deemed the maximum permanent partial 
 disability. Compensation for any other permanent partial 
 disability shall be in the proportion which the extent of such 
 disability shall bear to the said maximum. If the injured 
 workman be under the age of twenty-one years and unmarried, 
 the parents or parent shall also receive a lump sum payment 
 equal to ten per cent of the amount awarded the minor 
 workman. 
 
 (g) Should a further accident occur to a workman already 
 receiving a monthly payment under this section for a tem- 
 porary disability, or who has been previously the recipient 
 of a lump sum payment under this act, his future compen- 
 sation shall be adjusted according to the other provisions 
 of this section and with regard to the combined effect of his 
 injuries, and his past receipt of money under this act. 
 
 (h) If aggravation, diminution, or termination of dis- 
 ability takes place or be discovered after the rate of com- 
 pensation terminated in any case the department may, upon
 
 1076 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 the application of the beneficiary or upon its own motion, 
 readjust for future application the rate of compensation in 
 accordance with the rules in this section provided for the 
 same, or in a proper case terminate the payments. 
 
 (i) A husband or wife of an injured workman, living in 
 a state of abandonment for more than one year at the time 
 of the injury or subsequently, shall not be a beneficiary 
 under this act. 
 
 (j) If a beneficiary shall reside or remove out of the State 
 the department may, in its discretion, convert any monthly 
 payments as provided for such case into a lump sum pay- 
 ment (not in any case to exceed $4,000.00) upon the theory, 
 according to the expectancy of life as fixed by the American 
 Mortality Table, that a monthly payment of $20.00 to a 
 person thirty years of age is worth $4,000.00, or, with the 
 consent of the beneficiary, for a smaller sum. 
 
 (k) Any court review under this section shall be initiated 
 in the county where the workman resides or resided at the 
 time of the injury, or in which the injury occurred. 
 
 INTENTIONAL INJURIES STATUS OF MINORS 
 
 SEC. 6. If injury or death results to a workman from the de- 
 liberate intention of the workman himself to produce such in- 
 jury or death, neither the workman nor the widow, widower, 
 child or dependent of the workman shall receive any pay- 
 ment whatsoever out of the accident fund. If injury or 
 death results to a workman from the deliberate intention of 
 his employer to produce such injury or death, the workman, 
 the widow, widower, child or dependent of the workman 
 shall have the privilege to take under this act and also have 
 cause of action against the employer, as if this act had not 
 been enacted, for any excess of damage over the amount 
 received or receivable under this act. 
 
 A minor working at an age legally permitted under the 
 laws of this State shall be deemed sui juris for the purpose
 
 TEXTS OF COMPENSATION ACTS 1077 
 
 Washington 
 
 of this act, and no other person shall have any cause or 
 action or right to compensation for an injury to such minor 
 workman except as expressly provided in this act, but in 
 the event of a lump sum payment becoming due under this 
 act to such minor workman, the management of the sum 
 shall be within the probate jurisdiction of the courts the 
 same as other property of minors. 
 
 CONVERSION INTO LUMP SUM PAYMENT 
 
 SEC. 7. In case of death or permanent total disability the 
 monthly payment provided may be converted, in whole or in 
 part, into a lump sum payment (not in any case to exceed 
 $4, 000.00), on the theory, according to the expectancy of life as 
 fixed by the American Mortality Table, that a monthly pay- 
 ment of $20.00 to a person thirty years of age is worth the sum 
 of $4000.00, hi which event the monthly payment shall cease 
 in whole or in part accordingly or proportionately. Such 
 conversion may only be made after the happening of the 
 injury and upon the written application of the beneficiary 
 (in case of minor children, the application may be by either 
 parent) to the department, and shall rest in the discretion 
 of the department. Within the rule aforesaid the amount 
 and value of the lump sum payment may be agreed upon 
 between the department and the beneficiary. 
 
 DEFAULTING EMPLOYERS 
 
 SEC. 8. If any employer shall default in any payment to 
 the accident fund hereinbefore in this act required, the sum 
 due shall be collected by action at law in the name of the 
 State as plaintiff, and such right of action shall be in ad- 
 dition to any other right of action or remedy. In respect 
 to any injury happening to any of his workmen during the 
 period of any default in the payment of any premium under 
 section 4, the defaulting employer shall not, if such default 
 be after demand for payment, be entitled to the benefits
 
 1078 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 of this act, but shall be liable to suit by the injured work- 
 man (or the husband, wife, child or dependent of such work- 
 man in case death result from the accident), as he would have 
 been prior to the passage of this act. 
 
 In case the recovery actually collected in such suit shall 
 equal or exceed the compensation to which the plaintiff 
 therein would be entitled under this act, the plaintiff shall 
 not be paid anything out of the accident fund; if the said 
 amount shall be less than such compensation under this act, 
 the accident fund shall contribute the amount of the de- 
 ficiency. The person so -entitled under the provisions of 
 this section to sue shall have the choice (to be exercised be- 
 fore suit) of proceeding by suit or taking under this act. If 
 such person shall take under this act, the cause of action 
 against the employer shall be assigned to the State for the 
 benefit of the accident fund. In any suit brought upon 
 such cause of action the defense of fellow servant and as- 
 sumption of risk shall be inadmissible, and the doctrine of 
 comparative negligence shall obtain. Any such cause of 
 action assigned to the State may be prosecuted or compro- 
 mised by the department is its discretion. Any compromise 
 by the workman of any such suit, which would have a de- 
 ficiency to be made good out of the accident fund, may be 
 made only with the written approval of the department. 
 
 EMPLOYER'S RESPONSIBILITY FOR SAFEGUARD 
 
 SEC. 9. If any workman shall be injured because of the 
 absence of any safeguard or protection required to be pro- 
 vided or maintained by, or pursuant to, any statute or ordi- 
 nance, or any departmental regulation under any statute, 
 or be, at the time of the injury, of less than the maximum 
 age prescribed by law for the employment of a minor in the 
 occupation in which he shall be engaged when injured, the 
 employer shall, within ten days after demand therefor by 
 the department, pay into the accident fund, in addition to 
 the same required by section 4 to be paid:
 
 TEXTS OF COMPENSATION ACTS 1079 
 
 Washington 
 
 (a) In case the consequent payment to the workman 
 out of the accident fund be a lump sum, a sum equal to 50 
 per cent of that amount. 
 
 (b) In case the consequent payment to the workman be 
 payable in monthly payments, a sum equal to 50 per cent 
 of the lump value of such monthly payment, estimated 
 in accordance with the rule stated in section 7. 
 
 The foregoing provisions of this act shall not apply to 
 the employer if the absence of such guard or protection 
 be due to the removal thereof by the injured workman 
 himself or with his knowledge by any of his fellow workmen, 
 unless such removal be by order or direction of the employer 
 or superintendent or foreman of the employer, or any one 
 placed by the employer in control or direction of such work- 
 man. If the removal of such guard or protection be by the 
 workman himself or with his consent by any of his fellow 
 workmen, unless done by order or direction of the employer 
 or the superintendent or foreman of the employer, or any 
 one placed by the employer in control, or direction of such 
 workman, the schedule of compensation provided in sec- 
 tion 5 shall be reduced 10 per cent for the individual case 
 of such workman. 
 
 EXEMPTION OF AWARDS 
 
 SEC. 10. No money paid or payable under this act out 
 of the accident fund shall, prior to issuance and delivery of 
 the warrant therefor, be capable of being assigned, charged, 
 nor ever be taken in execution or attached or garnished, 
 nor shall the same pass to any other person by operation 
 of law. Any such assignment or charge shall be void. 
 
 NONWAIVER OF ACT BY CONTRACT 
 
 SEC. 11. No employer or workman shall exempt himself 
 from the burden or waive the benefits of this act by any con-
 
 1080 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 tract, agreement, rule or regulation, and any such contract, 
 agreement, rule or regulation shall be pro ianto void. 
 
 FILING CLAIM FOR COMPENSATION 
 
 SEC. 12. (a) Where a workman is entitled to compensation 
 under this act he shall file with the department, his applica- 
 tion for such, together with the certificate of the physician who 
 attended him, and it shall be the duty of the physician to 
 inform the injured workman of his rights under this act and to 
 lend all necessary assistance in making this application for 
 compensation and such proof of other matters as required by 
 the rules of the department without charge to the workman. 
 
 (b) Where death results from injury the parties entitled 
 to compensation under this act, or some one in their behalf, 
 shall make application for the same to the department, which 
 application must be accompanied with proof of death and 
 proof of relationship showing the parties to be entitled to 
 compensation under this act, certificates of attending physi- 
 cian, if any, and such other proof as required by the rules 
 of the department. 
 
 (c) If change of circumstance warrant an increase or 
 rearrangement of compensation, like application shall be 
 made therefor. No increase or rearrangement shall be opera- 
 tive for any period prior to application therefor. 
 
 (d) No application shall be valid or claim thereunder 
 enforceable unless filed within one year after the day upon 
 which the injury occurred or the right thereto accrued. 
 
 MEDICAL EXAMINATION 
 
 SEC. 13. Any workman entitled to receive compensation 
 under this act is required, if requested by the department, 
 to submit himself for medical examination at a time and from 
 time to time at a place reasonably convenient for the work- 
 man and as may be provided by the rules of the department. 
 If the workman refuses to submit to any such examination,
 
 TEXTS OF COMPENSATION ACTS 1081 
 
 Washington 
 
 or obstructs the same, his rights to monthly payments shall 
 be suspended until such examination has taken place, and 
 no compensation shall be payable during or for account of 
 such period. 
 
 NOTICE OF ACCIDENT 
 
 SEC. 14 Whenever any accident occurs to any workman 
 it shall be the duty of the employer to at once report such 
 accident and the injury resulting therefrom to the department 
 and also to any local representative of the department. 
 Such report shall state : 
 
 1. The time, cause and nature of the accident and injuries, 
 and the probable duration of the injury resulting therefrom. 
 
 2. Whether the accident arose out of or in the course of 
 the injured person's employment. 
 
 3. Any other matters the rules and regulations of the de- 
 partment may prescribe. 
 
 SEC. 15. The books, records and pay rolls of the employer 
 pertinent to the administration of this act shall always be 
 open to inspection by the department or its traveling auditor, 
 agent or assistant, for the purpose of ascertaining the correct- 
 ness of the pay roll, the men employed, and such other in- 
 formation as may be necessary for the department and its 
 management under this act. Refusal on the part of the 
 employer to submit said books, records and pay rolls for 
 such inspection to any member of the commission, or any 
 assistant presenting written authority from the commission, 
 shall subject the offending employer to a penalty of one 
 hundred dollars for each offense, to be collected by civil 
 action in the name of the State and paid into the accident 
 fund, and the individual who shall personally give such 
 refusal shall be guilty of misdemeanor.
 
 1082 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 PENALTY FOR MISREPRESENTATION AS TO PAY ROLL 
 
 SEC. 16. Any employer who shall misrepresent to the 
 department the amount of pay roll upon which the premium 
 under this act is based shall be liable to the State in ten 
 times the amount of the difference in premium paid and the 
 amount the employer should have paid. The liability to the 
 State under this section shall be enforced in a civil action 
 in the name of the State. All sums collected under this sec- 
 tion shall be paid into the accident fund. 
 
 PUBLIC AND CONTRACT WORK 
 
 SEC. 17. Whenever the State, county or any municipal 
 corporation shall engage in any extra hazardous work in 
 which workmen are employed for wages, this act shall be 
 applicable thereto. The employer's payments into the 
 accident fund shall be made from the treasury of the State, 
 county or municipality. If said work is being done by con- 
 tract, the pay roll of the contractor and the sub-contractor 
 shall be the basis of computation, and in the case of contract 
 work consuming less than one year in performance the 
 required payment into the accident fund shall be based upon 
 the total pay roll. The contractor and any sub-contractor 
 shall be subject to the provisions of the act, and the State 
 for its general fund, the county or municipal corporation 
 shall be entitled to collect from the contractor the full amount 
 payable to the accident fund, and the contractor, in turn 
 shall be entitled to collect from the sub-contractor his pro- 
 portionate amount of the payment. The provisions of this 
 section shall apply to all extra hazardous work done by 
 contract, except that in private work the contractor shall 
 be responsible, primarily and directly, to the accident fund 
 for the proper percentage of the total pay roll of the work 
 and the owner of the property affected by the contract shall 
 be surety for such payments. Whenever and so long as, 
 by state law, city charter or municipal ordinance, provision
 
 TEXTS OF COMPENSATION ACTS 1083 
 
 Washington 
 
 is made for municipal employes injured in the course of 
 employment, such employe's shall not be entitled to the 
 benefits of this act and shall not be included in the pay roll 
 of the municipality under this act. 
 
 INTERSTATE COMMERCE 
 
 SEC. 18. The provisions of this act shall apply to employers 
 and workmen engaged in intrastate and also in interstate 
 or foreign commerce, for whom a rule of liability or method 
 of compensation has been or may be established by the 
 Congress of the United States, only to the extent that their 
 mutual connection with intrastate work may and shall 
 be clearly separable and distinguishable from interstate or 
 foreign commerce, except that any such employer and any 
 of his workmen working only in this State may, with the 
 approval of the department, and so far as not forbidden 
 by any act of Congress, voluntarily accept the provisions 
 of this act by filing written acceptances with the department. 
 Such acceptances, when filed with and approved by the 
 department, shall subject the acceptors irrevocably to the 
 provisions of this act to all intents and purposes as if they 
 had been originally included in its terms. Payment of 
 premium shall be on the basis of the pay roll of the workmen 
 who accept as aforesaid. 
 
 ELECTIVE ADOPTION OF ACT 
 
 SEC. 19. Any employer and his employe's engaged in 
 works not extra hazardous may, by their joint election, filed 
 with the department, accept the provisions of this act, and 
 such acceptances, when approved by the department, shall 
 subject them irrevocably to the provisions of this act to all 
 intents and purposes as if they had been originally included 
 in its terms. Ninety per cent of the minimum rate specified 
 in section 4 shall be applicable to such case until otherwise 
 provided by law.
 
 1084 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
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 COURT REVIEW 
 
 SEC. 20. Any employer, workman, beneficiary, or person 
 feeling aggrieved at any decision of the department affecting 
 his interest under this act may have the same reviewed by a 
 proceeding for that purpose, in the nature of an appeal, 
 initiated in the superior court of the county of his residence 
 (except as otherwise provided in subdivision [1] of section 
 numbered 5) in so far as such decision rests upon questions 
 of fact, or of the proper application of the provisions of this 
 act, it being the intent that matters resting in the discretion 
 of the department shall not be subject to review. The pro- 
 ceedings in every such appeal shall be informal and summary, 
 but full opportunity to be heard shall be had before judgment 
 is pronounced. No such appeal shall be entertained unless 
 notice of appeal shall have been served by mail or personally 
 upon some member of the commission within twenty days 
 following the rendition of the decision appealed from and 
 communication thereof to the person affected thereby. No 
 bond shall be required, except that an appeal by the employer 
 from a decision of the department under section 9 shall 
 be ineffectual unless, within five days following the service 
 of notice thereof, a bond, with surety satisfactory to the court, 
 shall be filed, conditioned to perform the judgment of the 
 court. Except in the case last named an appeal shall not 
 be a stay. The calling of a jury shall rest in the discretion 
 of the court except that in cases arising under sections 9, 15 
 and 16 either party shall be entitled to a jury trial upon 
 demand. It shall be unlawful for any attorney engaged in 
 any such appeal to charge or receive any fee therein in excess 
 of a reasonable fee, to be fixed by the court in the case, and, 
 if the decision of the department shall be reversed or modified, 
 such fee and the fees of medical and other witnesses and the 
 costs shall be payable out of the administration fund, if 
 the accident fund is affected by the litigation. In other 
 respects the practice in civil cases shall apply. Appeal shall
 
 TEXTS OF COMPENSATION ACTS 1085 
 
 Washington 
 
 lie from the judgment of the superior court as in other civil 
 cases. The attorney general shall be the legal adviser of 
 the department and shall represent it in all proceedings, 
 whenever so requested by any of the commissioners. In all 
 court proceedings under or pursuant to this act the decision 
 of the department shall be prima facie correct, and the 
 burden of proof shall be upon the party attacking the same. 
 
 CREATION OF DEPARTMENT 
 
 SEC. 21. The administration of this act is imposed upon a 
 department, to be known as the Industrial Insurance De- 
 partment, to consist of three commissioners to be appointed 
 by the governor, One of them shall hold office for the first 
 two years, another for the first four years, and another for 
 the first six years following the passage and approval of this 
 act. Thereafter the term shall be six years. Each commis- 
 sioner shall hold until his successor shall be appointed and shall 
 have qualified. A decision of any question arising under this 
 act concurred in by two of the commissioners shall be the 
 decision of the department. The governor may at any time 
 remove any commissioner from office in his discretion, but 
 within ten days following any such removal the governor 
 shall file in the office of the secretary of State a statement 
 of his reasons therefor. The commission shall select one 
 of their members as chairman. The main office of the com- 
 mission shall be at the state capitol, but branch offices may 
 be established at other places in the State. Each member 
 of the commission shall have power to issue subpoenas 
 requiring the attendance of witnesses and the production 
 of books and documents. 
 
 SALARY OF COMMISSIONERS 
 
 SEC. 22. The salary of each of the commissioners shall 
 be thirty-six hundred dollars per annum, and he shall be 
 allowed his actual and necessary traveling and incidental
 
 1086 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 expenses; and any assistant to the commissioners shall be 
 paid for each full day's service rendered by him, his actual 
 and necessary traveling expenses and such compensation 
 as the commission may deem proper, not to exceed six dollars 
 per day to an auditor, or five dollars per day to any other 
 assistant. 
 
 DEPUTIES AND ASSISTANTS 
 
 SEC. 23. The commissioners may appoint a sufficient 
 number of auditors and assistants to aid them in the adminis- 
 tration of this act, at an expense not to exceed $5,000.00 
 per month. They employ one or more physicans in each 
 county for the purpose of official medical examinations, 
 whose compensation shall be limited to five dollars for each 
 examination and report therein. They may procure such 
 record books as they may deem necessary for the record of 
 the financial transactions and statistical data of the de- 
 partment, and the necessary documents, forms and blanks. 
 They may establish and require all employers to install and 
 maintain an uniform form of pay roll. 
 
 CONDUCT, MANAGEMENT AND SUPERVISION OF DEPARTMENT 
 
 SEC. 24. The commission shall, in accordance with the 
 provisions of this act : 
 
 1. Establish and promulgate rules governing the admin- 
 istration of this act. 
 
 2. Ascertain and establish the amounts to be paid into 
 and out of the accident fund. 
 
 3. Regulate the proof of accident and extent thereof, the 
 proof of death and the proof of relationship and the extent 
 of dependency. 
 
 4. Supervise the medical, surgical and hospital treatment 
 to the intent that same may be in all cases suitable and whole- 
 some. 
 
 5. Issue proper receipts for moneys received, and certificate 
 for benefits accrued and accruing.
 
 TEXTS OF COMPENSATION ACTS 1087 
 
 Washington 
 
 6. Investigate the cause of all serious injuries and report 
 to the governor from time to time any violations or laxity 
 in performance of protective statutes or regulations coming 
 under the observation of the department. 
 
 7. Compile and preserve statistics showing the number 
 of accidents occurring in the establishment or works of each 
 employer, the liabilities and expenditures of the accident 
 fund on account of, and the premium collected from the 
 same, and hospital charges and expenses. 
 
 8. Make annual reports to . the governor (one of them 
 not more than sixty nor less than thirty days prior to each 
 regular session of the legislature) of the workings of the 
 department, and showing the financial status and the out- 
 standing obligations of the accident fund, and the statistics 
 aforesaid. 
 
 MEDICAL WITNESS 
 
 SEC. 25. Upon the appeal of any workman from any de- 
 cision of the department affecting the extent of his injuries 
 or the progress of the same, the court may appoint not to 
 exceed three physicians to examine the physical condition of 
 the appellant, who shall make to the court their report 
 thereon, and they may be interrogated before the court by 
 or on behalf of the appellant in relation to the same. The 
 fee of each shall be fixed by the court, but shall not exceed 
 ten dollars per day each. 
 
 DISBURSEMENT OF FUNDS 
 
 SEC. 26. Disbursement out of the funds shall be made only 
 upon warrants drawn by the State auditor upon vouchers 
 therefor transmitted to him by the department and audited 
 by him. The state treasurer shall pay every warrant out of 
 the fund upon which it is drawn. If, at any time, there 
 shall not be sufficient money in the fund on which any such 
 warrant shall have been drawn wherewith to pay the same,
 
 1088 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 the employer on account of whose workman it was that the 
 warrant was drawn shall pay the same, and he shall be cred- 
 ited upon his next following contribution to such fund the 
 amount so paid with interest thereon at the legal rate from 
 the date of such payment to the date such next following 
 contribution became payable, and if the amount of the credit 
 shall exceed the amount of the contribution, he shall have 
 a warrant upon the same fund for the excess, and if any such 
 warrant shall not be so paid, it shall remain, nevertheless, 
 payable out of the fund. The state treasurer shall to such 
 extent as shall appear to him to be advisable keep the moneys 
 of the unsegregated portion of the accident fund invested 
 at interest in the class of securities provided by law for the 
 investment of the permanent school fund. The state treas- 
 urer shall be liable on his official bond for the safe custody 
 of the moneys and securities of the accident fund, but all 
 the provisions of an act approved February 21, 1907, entitled 
 "An act to provide for state depositories and to regulate 
 the deposits of state moneys therein," shall be applied to 
 said moneys and the handling thereof by the state treasurer. 
 
 TEST OF INVALIDITY OF ACT 
 
 SEC. 27. If any employer shall be adjudicated to be out- 
 side the lawful scope of this act, the act shall not apply to him 
 or his workman, or if any workman shall be adjudicated to be 
 outside the lawful scope of this act because of remoteness 
 of his work from the hazard of his employer's work, any such 
 adjudication shall not impair the validity of this act in other 
 respects, and in every such case an accounting in accordance 
 with the justice of the case shall be had of moneys received. 
 If the provisions of section 4 of this act for the creation of 
 the accident fund, or the provisions of this act making the 
 compensation to the workman provided in it exclusive of 
 any other remedy on the part of the workman shall be held 
 invalid the entire act shall be thereby invalidated except
 
 TEXTS OF COMPENSATION ACTS 
 
 Washington 
 
 the provisions of section 31, and an accounting according 
 to the justice of the case shall be had of moneys received. 
 In other respects an adjudication of invalidity of any part 
 of this act shall not affect the validity of the act as a whole or 
 any other part thereof. 
 
 STATUTE OF LIMITATIONS SAVED 
 
 SEC. 28. If the provisions of this act relative to compensa- 
 tion for injuries to or death of workmen become invalid 
 because of any adjudication, or be repealed, the period in- 
 tervening between the occurrence of an injury or death, not 
 previously compensated for under this act by lump payment 
 or completed monthly payments, and such repeal or the ren- 
 dition of the final adjudication of the invalidity shall not be 
 computed as a part of the time limited by law for the com- 
 mencement of any action relating to such injury or death: 
 Provided, That such action be commenced within one year 
 after such repeal or adjudication; but in any such action 
 any sum paid out of the accident fund to the workman on 
 account of injury, to whom the action is prosecuted, shall 
 be taken into account or disposed of as follows: If the de- 
 fendant employer shall have paid without delinquency into 
 the accident fund the payment provided by section 4, such 
 sums shall be credited upon the recovery as payment thereon, 
 otherwise the sum shall not be so credited but shall be de- 
 ducted from the sum collected and be paid into the said fund 
 from which they had been previously disbursed. 
 
 APPROPRIATIONS 
 
 SEC. 29. There is hereby appropriated out of the state 
 treasury the sum of one hundred and fifty thousand dollars, 
 or so much thereof as may be necessary, to be known as the 
 administration fund, out of which the salaries, traveling 
 and office expenses of the department shall be paid, and also 
 all other expenses of the administration of the accident 
 69
 
 1090 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Washington 
 
 fund; and there is hereby appropriated out of the accident 
 fund for the purpose to which said fund is applicable the 
 sum of $1,500,000.00, or so much thereof as shall be necessary 
 for the purposes of this act. 
 
 SAFEGUARD REGULATIONS PRESERVED 
 
 SEC. 30. Nothing in this act contained shall repeal any 
 existing law providing for the installation or maintenance 
 of any device, means or method for the prevention of accident 
 in extra hazardous work or for a penalty or punishment 
 for failure to install or maintain any such protective device, 
 means or method, but section 8, 9, and 10 of the act approved 
 March 6, 1905, entitled: "An act providing for the pro- 
 tection and health of employe's in factories, mills or work- 
 shops, where machinery is used, and providing for suits to 
 recover damages sustained by the violation thereof, and 
 prescribing a punishment for the violation thereof and 
 repealing an act entitled 'An act providing for the protection 
 of employes in factories, mills, or workshops where machin- 
 ery is used, and providing for the punishment of the violation 
 thereof, approved March 6, 1903,' and repealing all other acts 
 or parts of acts in conflict herewith," are hereby repealed, 
 except as to any cause of action which shall have accrued 
 thereunder prior to October 1, 1911. 
 
 DISTRIBUTION OF FUNDS IN CASE OF REPEAL 
 
 SEC. 31. If this act shall be hereafter repealed, all moneys 
 which are in the accident fund at the time of the repeal 
 shall be subject to such disposition as may be provided by 
 the legislature, and in default of such legislative provision 
 distribution thereof shall be in accordance with the justice 
 of the matter, due regard being had to obligations of compen- 
 sation incurred and existing. 
 
 SAVING CLAUSE 
 
 SEC. 32. This act shall not affect any action pending or
 
 TEXTS OF COMPENSATION ACTS 1091 
 
 Wisconsin 
 
 cause of action existing on the 30th day of September, 
 1911. 
 
 Passed the House February 23, 1911. 
 
 Passed the Senate March 7, 1911. 
 
 Approved by the Governor March 14, 1911. 
 
 WISCONSIN 
 
 (L. 1911, c. 50) 
 
 An act to create sections 2394-1 to 2394-32 of the statutes 
 (to be included in a new chapter of the statutes to be 
 numbered chapter HOa), relating to the liability of em- 
 ployers for injuries or death sustained by their employe's, 
 providing for compensation for the accidental injury or 
 death of employe's, establishing an industrial accident 
 board, 1 defining its powers, providing for a review of its 
 awards, and making an appropriation to carry out the 
 provisions of this act. 
 
 ABROGATION OF DEFENSES 
 
 SEC. 1. There are added to the statutes thirty-two 
 new sections to read: Section 2394-1. In any action to 
 recover damages for a personal injury sustained within this 
 State by an employe 1 while engaged in the line of his duty 
 as such, or for death resulting from personal injury so sus- 
 tained, in which recovery is sought upon the ground of 
 want of ordinary care of the employer, or of any officer, 
 agent, or servant of the employer, it shall not be a defense: 
 
 1. That the employe either expressly or impliedly assumed 
 the risk of the hazard complained of. 
 
 2. When such employer has at the time of the accident 
 in a common employment four or more employe's, that the 
 injury or death was caused in whole or in part by the want 
 of ordinary care of a fellow-servant. 
 
 1 Superseded. See p. 000.
 
 1092 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 Any employer who has elected to pay compensation as 
 hereinafter provided shall not be subject to the provisions 
 of this section 2394-1. 
 
 SEC. 2394-2. No contract, rule, or regulation, shall exempt 
 the employer from any of the provisions of the preceding 
 section of this act. 
 
 APPLICATION TO RAILROADS 
 
 SEC. 2394-3. Except as regards employes working in 
 shops or offices of a railroad company, who are within 
 the provisions of subsection 9 of section 1816 of the statutes 
 as amended by chapter 254 of the laws of 1907, the term 
 "employer" as used in the two preceding sections of this 
 act shall not include any railroad company as denned in 
 subsection 7 of said section 1816 as amended, said section 1816 
 and amendatory acts being continued in force unaffected, 
 except as aforesaid, by the preceding sections of this act. 
 
 LIABILITY FOR COMPENSATION 
 
 SEC. 2394-4. Liability for the compensation hereinafter 
 provided for, in lieu of any other liability whatsoever, shall 
 exist against an employer for any personal injury accidentally 
 sustained by his employe", and for his death, if the injury 
 shall proximately cause death, in those cases where the 
 following conditions of compensation concur: 
 
 1. Where, at the time of the accident, both the employer 
 and employ 6 are subject to the provisions of this act accord- 
 ing to the succeeding sections hereof. 
 
 2. Where, at the time of the accident, the employe" is 
 performing service growing out of and incidental to his 
 employment. 
 
 3. Where the injury is proximately caused by accident, 
 and is not caused by willful misconduct. 
 
 And where such conditions of compensation exist for any 
 personal injury or death, the right to recovery of such com-
 
 TEXTS OF COMPENSATION ACTS 1093 
 
 Wisconsin 
 
 pensation pursuant to the provisions of this act, and acts 
 amendatory thereof, shall be the exclusive remedy against 
 the employer for such injury or death; in all other cases the 
 liability of the employer shall be the same as if this and the 
 succeeding sections of this act had not been passed, but shall 
 be subject to the provisions of the preceding sections of this 
 act. 
 
 "EMPLOYER" DEFINED 
 
 SEC. 2394-5. The following shall constitute employers 
 subject to the provisions of this act within the meaning of 
 the preceding section : 
 
 1. The State, and each county, city, town, village, and 
 school district therein. 
 
 2. Every person, firm, and private corporation (including 
 any public service corporation), who has any person in 
 service under any contract of hire, express or implied, oral 
 or written, and who, at or prior to the time of the accident 
 to the employ^ for which compensation under this act may 
 be claimed, shall, in the manner provided in the next section, 
 have elected to become subject to the provisions of this act, 
 and who shall not, prior to such accident, have effected a 
 withdrawal of such election, in the manner provided in the 
 next section. 
 
 ELECTION BY EMPLOYER 
 
 SEC. 2394-6. Such election on the part of the employer 
 shall be made by filing with the industrial accident board, 1 
 hereinafter provided for, a written statement to the effect 
 that he accepts the provisions of this act, the filing of which 
 statement shall operate, within the meaning of section 2394-5 
 of this act to subject such employer to the provisions of this 
 act and all acts amendatory thereof for the term of one 
 year from the date of the filing of such statement, and there- 
 
 1 Superseded. See note 1, p. 1102.
 
 1094 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 after, without further act on his part, for successive terms 
 of one year each, unless such employer shall, at least sixty 
 days prior to the expiration of such first or any succeeding 
 year, file in the office of said board a notice in writing to the 
 effect that he desires to withdraw his election to be subject 
 to the provisions of the act. 
 
 "EMPLOYE" DEFINED 
 
 SEC. 2394-7. The term "employe"" as used in section 
 2394-4 of this act shall be construed to mean : 
 
 1. Every person in the service of the State, or of any 
 county, city, town, village, or school district therein, under 
 any appointment, or contract of hire, express or implied, 
 oral or written, except any official of the State, or of any 
 county, city, town, village, or school district therein, provided 
 that one, employed by a contractor, who has contracted with 
 a county, city, town, village, school district, or the State, 
 through its representatives, shall not be considered an 
 employe" of the State, county, city, town, village, or school 
 district which made the contract. 
 
 2. Every person in the service of another under any con- 
 tract 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 purposes 
 of the next section of this act, shall be considered the same 
 and shall have the same power of contracting as adult em- 
 ploy 6s), but not including any person whose employment 
 is but casual or is not in the usual course of the trade, business, 
 profession, or occupation of his employer. 
 
 ELECTION BY EMPLOYE 
 
 SEC. 2394-8. Any employe" as defined in subsection 1 
 of the preceding section shall be subject to the provisions 
 of this act and any act amendatory thereof. Any employe" 
 as defined in subsection 2 of the preceding section shall be
 
 TEXTS OF COMPENSATION ACTS 1095 
 
 Wisconsin 
 
 deemed to have accepted and shall, within the meaning of 
 section 2394-4 of this act, be subject to the provisions of 
 this act and of any act amendatory thereof, if, at the time 
 of the accident upon which liability is claimed : 
 
 1. The employer charged with such liability is subject to 
 the provisions of this act, whether the employe" has actual 
 notice thereof or not ; and 
 
 2. Such employe shall not, at the time of entering into 
 his contract of hire, express or implied, with such employer, 
 have given to his employer notice in writing that he elects 
 not to be subject to the provisions of this act; or, in the event 
 that such contract of hire was made in advance of such 
 employer becoming subject to the provisions of this act, such 
 employe shall have given to his employer notice in writing 
 that he elects to be subject to such provisions, or without 
 giving either of such notices, shall have remained in the 
 service of such employer for thirty days after the employer 
 has filed with said board an election to be subject to the 
 terms of this act. 
 
 SCALE OF COMPENSATION 
 
 SEC. 2394-9. Where liability for compensation under 
 this act exists, the same shall be as provided in the following 
 schedule : 
 
 1. Such medical and surgical treatment, medicines, med- 
 ical and surgical supplies, crutches, and apparatus, as may 
 be reasonably required at the time of the injury and there- 
 after during the disability, but not exceeding ninety days, 
 to cure and relieve from the effects of the injury, the same 
 to be provided by the employer; and in case of his neglect 
 or refusal seasonably to do so, the employer to be liable 
 for the reasonable expense incurred by or on behalf of the 
 employe in providing the same. 
 
 2. If the accident causes disability, an indemnity which 
 shall be payable as wages on the eighth day after the injured
 
 1096 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 employ 6 leaves work as the result of the injury, and weekly 
 thereafter, which weekly indemnity shall be as follows: 
 
 (a) If the accident causes total disability, sixty-five per 
 cent of the average weekly earnings during the period of 
 such total disability, provided that, if the disability is such 
 as not only to render the injured employe entirely incapable 
 of work, but also so helpless as to require the assistance of 
 a nurse, the weekly indemnity during the period of such 
 assistance after the first ninety days shall be increased to one 
 hundred per cent of the average weekly earnings. 
 
 (b) If the accident causes partial disability, sixty-five 
 per cent of the weekly loss in wages during the period of 
 such partial disability. 
 
 (c) If the disability caused by the accident is at times 
 total and at times partial, the weekly indemnity during the 
 periods of each such total or partial disability shall be in 
 accordance with said subdivision (a) and (b) respectively. 
 
 (d) Said subdivisions (a), (b), and (c) shall be subject 
 to the following limitations : 
 
 Aggregate disability indemnity for injury to a single em- 
 ploye" caused by a single accident shall not exceed four times 
 the average annual earnings of such employ^. 
 
 The aggregate disability period shall not, in any event, 
 extend beyond fifteen years from the date of the accident. 
 
 The weekly indemnity due on the eighth day after the 
 employe leaves work as the result of the injury may be 
 withheld until the twenty-ninth day after he so leaves work; 
 if recovery from the disability shall then have occurred, 
 such first weekly indemnity shall not be recoverable; if the 
 disability still continues, it shall be added to the weekly 
 indemnity due on said twenty-ninth day and be paid there- 
 with. 
 
 If the period of disability does not last more than one week 
 from the day the employe" leaves work as the result of the 
 injury no indemnity whatever shall be recoverable.
 
 TEXTS OF COMPENSATION ACTS 1097 
 
 Wisconsin 
 
 3. The death of the injured employ^ shall not affect the 
 obligation of the employer under subsections 1 and 2 of this 
 section, so far as his liability shall have become payable 
 at the time of death; but the death shall be deemed the 
 termination of disability, and the employer shall thereupon 
 be liable for the following death benefits in lieu of any further 
 disability indemnity: 
 
 (a) In case the deceased employe" leaves a person or 
 persons wholly 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 subsection 2 of this section, 
 to make the total compensation for the injury and death 
 (exclusive of the benefit provided for in subsection 1), equal 
 to four times his average annual earnings; the same to be 
 payable unless and until the board shall direct payment in 
 gross, in weekly installments corresponding in amount to 
 the weekly earnings of the employe". 
 
 (b) In case the deceased employe" leaves no one wholly 
 dependent on him for support, but one or more persons 
 partially dependent therefor, the death benefit shall be such 
 percentage of four times such average annual earnings of 
 the employe" as the average annual amount devoted by the 
 deceased to the support of the person or persons so partially 
 dependent on him for support bears to such average annual 
 earnings, the same to be payable, unless and until the board 
 shall direct payment in gross, in weekly installments, corre- 
 sponding in amount to the weekly earnings of the employe ; 
 provided that the total compensation for the injury and 
 death (exclusive of the benefit provided for in said subsec- 
 tion 1) shall not exceed four times such average annual 
 earnings. 
 
 (c) Liability for the death benefits provided for in subdi- 
 visions (a) and (b) respectively shall only exist where the acci- 
 dent is the proximate cause of death; provided that, if the
 
 1098 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 accident proximately causes permanent total disability, and 
 death ensues from some other cause before disability indemnity 
 ceases, the death benefit shall be the same as though the 
 accident had caused death; and provided further that, if 
 the accident proximately causes permanent partial disability 
 and death ensues from some other cause before disability 
 indemnity ceases, liability shall exist for such percentage 
 of the death benefits provided for in said subdivision (a) or (b) 
 (as the case may be), as shall fairly represent the propor- 
 tionate extent of the impairment of earning capacity caused 
 by such permanent partial disability in the employment 
 in which the employ 6 was working at the time of the accident, 
 (d) If the deceased employe leaves no person dependent 
 upon him for support, and the accident proximately causes 
 death, the death benefit shall consist of the reasonable expense 
 of his burial, not exceeding $100. 
 
 METHOD OF COMPUTATION 
 
 SEC. 2394 10. 1. The weekly earnings referred to in 
 section 2394 9 shall be one fifty-second of the average 
 annual earnings of the employe; average annual earnings 
 shall not be taken at less than $375, nor more than $750, 
 and between said limits shall be arrived at as follows : 
 
 (a) If the injured employe has worked in the employment 
 in which he was working at the time of the accident, whether 
 for the same employer or not, during substantially the whole 
 of the year immediately preceding his injury, his average 
 annual earnings shall consist of three hundred times the 
 average daily wage or salary which he has earned in such 
 employment during the days when so employed. 
 
 (b) If the injured employe" has not so worked in such 
 employment during substantially the whole of such imme- 
 diately preceding year, his average annual earnings shall 
 consist of three hundred times the average daily wage or 
 salary which an employe of the same class working sub-
 
 TEXTS OF COMPENSATION ACTS 1099 
 
 Wisconsin 
 
 stantially the whole of such immediately preceding year in 
 the same or in similar employment in the same or a neighbor- 
 ing place shall have earned in such employment during the 
 days when so employed. 
 
 (c) In cases where the foregoing methods of arriving at the 
 average annual earnings of the injured employ 6 cannot 
 reasonably and fairly be applied, such annual earnings shall 
 be taken at such sum as, having regard to the previous earn- 
 ings of the injured employe", and of other employe's of the 
 same or most similar class, working in the same or most similar 
 employment, in the same or a neighboring locality, shall 
 reasonably represent the annual earning capacity of the 
 injured employ 6 at the time of the accident hi the employ- 
 ment in which he was working at such time. 
 
 (d) The fact that an employe" has suffered a previous 
 disability, or received compensation therefor, shall not 
 preclude compensation for a later injury, or for death, but 
 in determining compensation for the later injury, or death, 
 his average annual earnings shall be such sum as will reason- 
 ably represent his annual earning capacity at the time of 
 the later injury, in the employment in which he was working 
 at such time, and shall be arrived at according to, and subject 
 to the limitations of, the previous provisions of this section. 
 
 2. The weekly loss in wages referred to in section 2394-9 
 shall consist of such percentage of the average weekly earnings 
 of the injured employe, computed according to the provision 
 of this section, as shall fairly represent the proportionate 
 extent of the impairment of his earning capacity hi the em- 
 ployment in which he was working at the time of the accident, 
 the same to be fixed as of the time of the accident, but to 
 be determined in view of the nature and extent of the 
 injury. 
 
 3. The following shall be conclusively presumed to be 
 solely and wholly dependent for support upon a deceased 
 employe:
 
 1100 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 (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 eighteen years (or 
 over said age, but physically or mentally incapacitated from 
 earning), upon the parent with whom he or they are living 
 at the time of the death of the parent, there being no surviving 
 dependent parent. In case there is more than one child thus 
 dependent, the death benefit shall be divided equally among 
 them. 
 
 In all other cases questions of entire or partial dependency 
 shall be determined in accordance with the fact, as the fact 
 may be at the time of the death of the employe"; 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 partially dependent, if any, shall receive 
 no part thereof; and if there is more than one person partially 
 dependent, .the death benefit shall be divided among them 
 according to the relative extent of their dependency. 
 
 4. No person shall be considered a dependent unless a 
 member of the family of the deceased employe", or bears 
 to him the relation of husband or widow, or lineal descendant, 
 or ancestor, or brother, or sister. 
 
 5. 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 their right to any death 
 benefit shall become fixed as of such time, irrespective of 
 any subsequent change in conditions; and the death benefit 
 shall be directly recoverable by and payable to the dependent 
 or dependents entitled thereto or their legal guardians or 
 trustees; provided that in case of the death of a dependent 
 whose right to a death benefit has thus become fixed, so 
 much of the same as is then unpaid shall be recoverable by 
 and payable to his personal representative in gross. No
 
 TEXTS OF COMPENSATION ACTS 1101 
 
 Wisconsin 
 
 person shall be excluded as a dependent who is a non-resident 
 alien. 
 
 6. No dependent of an injured employe shall be deemed, 
 during the life of such employe, a party in interest to any 
 proceeding by him for the enforcement or collection of any 
 claim for compensation, nor as respects the compromise 
 thereof by such employe". 
 
 NOTICE OF INJURY 
 
 SEC. 2394-11. No claim to recover compensation under 
 this act shall be maintained unless, within thirty days after 
 the occurrence of the accident which is claimed to have caused 
 the injury or death, notice in writing, stating the name and 
 address of the person injured, the time and place where the 
 accident occurred, and the nature of the injury, and signed 
 by the person injured or by some one on his behalf, or in 
 case of his death, by a dependent or some one on his behalf, 
 shall be served upon the employer, either by delivering 
 to and leaving with him a copy of such notice, or by mailing 
 to him by registered mail a copy thereof in a sealed and post- 
 paid envelope addressed to him at last known place of business 
 or residence. Such mailing shall constitute completed service. 
 Provided, however, that any payment of compensation under 
 this act, in whole or in part, made by the employer before 
 the expiration of said thirty days, shall be equivalent to the 
 notice herein required; and provided further, that the 
 failure to give any such notice, or any defect or inaccuracy 
 therein, shall not be a bar to recovery under this act if it 
 is found as a fact in the proceedings for collection of the 
 claim that there was no intention to mislead the employer, 
 and that he was not in fact misled thereby; and provided 
 further, that if no such notice is given and no payment of 
 compensation made, within two years from the date of the 
 accident, the right to compensation therefor shall be wholly 
 barred.
 
 1102 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 EXAMINATION BY PHYSICIAN 
 
 SEC. 2394-12. Wherever in case of injury the right to 
 compensation under this act would exist in favor of any 
 employe, he shall, upon the written request of his employer, 
 submit from time to time to examination by a regular prac- 
 ticing physician, who shall be provided and paid for by the 
 employer, and shall likewise submit to examination from time 
 to time by regular physician selected by said industrial ac- 
 cident board, or a member or examiner thereof. The employe 
 shall be entitled to have a physician, provided and paid for 
 by himself, present at any such examination. So long as 
 the employe, after such written request of the employer, 
 shall refuse to submit to such examination, or shall in any 
 way obstruct the same, his right to begin or maintain any 
 proceeding for the collection of compensation shall be sus- 
 pended; and if he shall refuse to submit to such examination 
 after direction by the board, or any member or examiner 
 thereof, or shall in any way obstruct the same, his right to 
 the weekly indemnity which shall accrue and become payable 
 during the period of such refusal or obstruction, shall be 
 barred. Any physician who shall make or be present at any 
 such examination may be required to testify as to the results 
 thereof. 
 
 CREATION OF BOARD 1 
 
 SEC. 2394-13. There is hereby created a board which 
 shall be known as the industrial accident board. 1 The com- 
 missioner of labor and industrial statistics shall be ex-officio 
 a member of such board. He may, however, authorize 
 the deputy commissioner to act in his place. Within thirty 
 days after the passage of this act, the governor, by and with 
 the advice and consent of the senate, shall appoint a member 
 
 1 The Industrial Accident Board has been superseded by the 
 Industrial Commission of Wisconsin. See sections 2394-42, Chap- 
 ter 485, Laws of Wisconsin for 1911.
 
 TEXTS OF COMPENSATION ACTS 1103 
 
 Wisconsin 
 
 who shall serve two years, and another who shall serve four 
 years. Thereafter such two members shall be appointed and 
 confirmed for terms of four years each. Vacancies shall 
 be filled in the same manner for the unexpired term. Each 
 member of the board, before entering upon the duties of his 
 office, shall take the oath prescribed by the constitution. 
 A majority of the board shall constitute a quorum for the 
 exercise of any of the powers or authority conferred by this 
 act, and an award by a majority shall be valid. In case of a 
 vacancy, the remaining two members of the board shall 
 exercise all the powers and authority of the board until such 
 vacancy is filled. Each member of the board, including the 
 said commissioner, shall receive an annual salary of $5,000. 
 This salary shall, as to the commissioner of labor and in- 
 dustrial statistics, be in full for his services as such commis- 
 sioner of labor and industrial statistics. 
 
 ORGANIZATION OF BOARD 1 
 
 SEC. 2394-14. The board shall organize by choosing one 
 of its members as chairman. Subject to the provisions of 
 this act, it may adopt its own rules of procedure and may 
 change the same from time to time in its discretion. The 
 board, when it shall deem it necessary to expedite its business, 
 may from time to time employ one or more expert examiners 
 for such length of time as may be required, such examiners 
 to be exempt from the operation of chapter 363 of the laws 
 of 1905, and amendatory acts. It may also appoint a secre- 
 tary, who shall be similarly exempt, and such clerical help 
 as it may deem necessary. It shall fix the compensation of 
 all assistants so appointed. It shall provide itself with a 
 seal for the authentication of its orders, awards, and pro- 
 ceedings, upon which shall be inscribed the words "Industrial 
 Accident Board Wisconsin Seal." It shall keep its office 
 at the capitol, and shall be provided by the superintendent 
 
 1 Superseded. See note 1, page 1102.
 
 1104 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 of public property with a suitable room or rooms, necessary 
 office furniture, stationery, and other supplies. The members 
 of the board and its assistants shall be entitled to receive 
 from the State their actual and necessary expenses while 
 traveling on the business of the board; but such expenses 
 shall be sworn to by the person who incurred the same, and 
 be approved by the chairman of the board, before payment 
 is made. All salaries and expenses authorized by this act 
 shall be audited and paid out of the general funds of the 
 State, the same as other general expenses are audited and 
 paid. 
 
 SUBMISSION OF DISPUTES 
 
 SEC. 2394-15. Any dispute or controversy concerning 
 compensation under this act, including any in which the 
 State may be a party, shall be submitted to said industrial 
 accident board in the manner and with the effect provided 
 in this act. Every compromise of any claim for compensation 
 under this act shall be subject to be reviewed by, and set aside, 
 modified, or confirmed by the board upon application made 
 within one year from the time of such compromise. 
 
 NOTICE OF HEARING 
 
 SEC. 2394-16. Upon the filing with the board by any 
 party in interest of an application in writing stating the 
 general nature of any claim as to which any dispute or con- 
 troversy may have arisen, it shall fix a time for the hearing 
 thereof, which shall not be more than forty days after the 
 filing of such application. The board shall cause notice of 
 such hearing, embracing a general statement of such claim, 
 to be given to each party interested, by service of such notice 
 on him personally or by mailing a copy thereof to him at 
 his last known postoffice address at least ten days before 
 such hearing. Such hearing may be adjourned from time 
 to time in the discretion of the board and hearings may be
 
 TEXTS OF COMPENSATION ACTS 1105 
 
 Wisconsin 
 
 held at such places as the board shall designate. Either 
 party shall have the right to be present at any hearing, in 
 person or by attorney, or any other agent, and to present 
 such testimony as may be pertinent to the controversy 
 before the board ; but the board may, with or without notice 
 to either party, cause testimony to be taken, or an inspection 
 of the premises where the injury occurred to be had, or the 
 time books and pay roll of the employer to be examined by 
 any member of the board or any examiner appointed by it, 
 and may from time to time direct any employe" claiming 
 compensation to be examined by a regular physician; the 
 testimony so taken, and the results of any such inspection 
 or examination, to be reported to the board for its considera- 
 tion upon final hearing. The board, or any member thereof, 
 or any examiner appointed thereby, shall have power and 
 authority to issue subpoenas, to compel the attendance of 
 witnesses or parties, and the production of books, papers, 
 or records, and to administer oaths. Obedience to such 
 subpoenas shall be enforced by the circuit court of any county. 
 
 FINDINGS AND AWARDS 
 
 SEC. 2394-17. After final hearing by said board, it shall 
 make and file (1) its findings upon all facts involved in the 
 controversy, and (2) its award, which shall state its determina- 
 tion as to the rights of the parties. Pending the hearing and 
 determination of any controversy before it, the board shall 
 have power to order the payment of such, or any part, of 
 the compensation, which is or may fall due, as to which the 
 party from whom the same is claimed does not deny liability 
 in good faith within ten days after the giving of notice of 
 hearing provided for in the preceding section; and if the 
 same shall not be paid as required by such order, the facts 
 with respect to the liability therefor, and the determination 
 of the board as to the rights of the parties, shall be embraced 
 in, and constitute a part of, its findings and awards; and the 
 70
 
 1106 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 board shall have the power to include in its award, as a pen- 
 alty for noncompliance with any such order, not exceeding 
 twenty-five per cent of each amount which shall not have 
 been paid as directed thereby. 
 
 FILING OF JUDGMENT 
 
 SEC. 2394-18. Either party may present a certified copy 
 of the award to the circuit court for any county, whereupon 
 said court shall, without notice, render a judgment in accord- 
 ance therewith; which judgment, until and unless set aside 
 as hereinafter provided, shall have the same effect as though 
 duly rendered in an action duly tried and determined by 
 said court, and shall, with like effect, be entered and docketed. 
 
 REVIEW BY COURT 
 
 SEC. 2394-19. The findings of fact made by the board 
 acting within its powers shall, in the absence of fraud, be 
 conclusive; and the award, whether judgment has been 
 rendered thereon or not, shall be subject to review only in 
 the manner and upon the grounds following: Within twenty 
 days from the date of the award, any party aggrieved thereby 
 may commence, in the circuit court for Dane county, an 
 action against the board for the review of such award, in 
 which action the adverse party shall also be made defendant. 
 In such action a complaint, which shall also state the grounds 
 upon which a review is sought, shall be served with the sum- 
 mons. Service upon the secretary of the board, or any mem- 
 ber of the board, shall be deemed completed service. The 
 board shall serve its answer within twenty days after the 
 service of the complaint, and, within the like time, such 
 adverse party shall, if he so desires, serve his answer to said 
 complaint. With its answer, the board shall make return 
 to said court of all documents and papers on file in the matter, 
 and of all testimony which may have been taken therein, 
 and of its findings and award. Said action thereupon be
 
 TEXTS OF COMPENSATION ACTS 1107 
 
 Wisconsin 
 
 brought on for hearing before said court upon such record 
 by either party on ten days' notice to the other; subject, 
 however, to the provisions of law for a change of the place 
 of trial or the calling in of another judge. Upon such hearing, 
 the court may confirm or set aside such award; and any 
 judgment which may theretofore have been rendered thereon; 
 but the same shall be set aside only upon the following 
 grounds : 
 
 1. That the board acted without or in excess of its 
 powers. 
 
 2. That the award was procured by fraud. 
 
 3. That the findings of fact by the board do not support 
 the award. 
 
 REMANDING OF RECORD 
 
 SEC. 2394-20. Upon the setting aside of any award the 
 court may recommit the controversy and remand the record 
 in the case to the board, for further hearing or proceedings; 
 or it may enter the proper judgment upon the findings, as 
 the nature of the case shall demand. An abstract of the 
 judgment entered by the trial court upon the review of any 
 award shall be made by the clerk thereof upon the docket 
 entry of any judgment which may theretofore have been 
 rendered upon such award, and transcripts of such abstract 
 may thereupon be obtained for like entry upon the dockets 
 of the courts of other counties. 
 
 APPEAL FROM AWARD 
 
 SEC. 2394-21. Said board, or any party aggrieved by a 
 judgment entered upon the review of any award, may appeal 
 therefrom within the time and in the manner provided for an 
 appeal from the orders of the circuit court; but all such appeal 
 shall be placed on the calendar of the supreme court and 
 brought to a hearing in the same manner as state causes on 
 such calendar.
 
 1108 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 FEES AND COSTS 
 
 SEC. 2394-22. No fees shall be charged by the clerk of 
 any court for the performance of any official service required 
 by this act, except for the docketing of judgments and for 
 certified copies of transcripts thereof. In proceedings to 
 review an award, costs as between the parties shall be allowed 
 or not in the discretion of the court, but no costs shall be 
 taxed against said board. In any action for the review of 
 an award, and upon any appeal therein to the supreme court, 
 it shall be the duty of the attorney general, personally, or 
 by an assistant, to appear on behalf of the board, whether any 
 other party defendant shall have appeared or be represented 
 in the action or not. Unless previously authorized by the 
 board, no lien shall be allowed, nor any contract be enforce- 
 able, for any contingent attorneys' fee for the enforcement 
 or collection of any claim for compensation where such con- 
 tingent fee, inclusive of all taxable attorneys' fees paid or 
 agreed to be paid for the enforcement or collection of such 
 claim, exceeds ten per cent of the amount at which such 
 claim shall be compromised, or of the amount awarded, 
 adjudged, or collected. 
 
 ASSIGNMENT OF CLAIM 
 
 SEC. 2394-23. No claim for compensation under this act 
 shall be assignable before payment, but this provision shall 
 not affect the survival thereof; nor shall any claim for com- 
 pensation, or compensation awarded, adjudged, or paid, 
 be subject to be taken for the debts of the party entitled 
 thereto. 
 
 PREFERENCE OF CLAIM 
 
 SEC. 2394-24. The whole claim for compensation for the 
 injury or death of any employ 6 or any award or judgment 
 thereon, shall be entitled to a preference over the unsecured 
 debts of the employer hereafter contracted, but this section
 
 TEXTS OF COMPENSATION ACTS 1109 
 
 Wisconsin 
 
 shall not impair the lien of any judgment entered upon any 
 award. 
 
 THIRD PARTY LIABILITY 
 
 SEC. 2394-25. The making of a lawful claim against an 
 employer for compensation under this act for the injury or 
 death of his employe shall operate as an assignment of any 
 cause of action in tort which the employe" or his personal 
 representative may have against any other party for such 
 injury or death; and such employer may enforce in his own 
 name the liability of such other party. 
 
 INSURANCE PROVISIONS 
 
 SEC. 2394-26. Nothing in this act shall affect the organi- 
 zation of any mutual or other insurance company, or any 
 existing contract for insurance of employers' liability, nor 
 the right of the employer to insure in mutual or other com- 
 panies, in whole or in part, against such liability, or against 
 the liability for the compensation provided for by this act, 
 or to provide by mutual or other insurance, or by arrange- 
 ment with his employe's, or otherwise, for the payment to 
 such employes, their families, dependents, or representa- 
 tives, of sick, accident, or death benefits in addition to the 
 compensation provided for by this act. But liability for 
 compensation under this act shall not be reduced or affected 
 by any insurance, contribution, or other benefit whatsoever, 
 due to or received by the person entitled to such compensa- 
 tion, and the person so entitled shall, irrespective of any 
 insurance or other contract, have the right to recover the 
 same directly from the enployer; and in addition thereto, 
 the right to enforce in his own name, in the manner provided 
 in this act, the liability of any insurance company which may, 
 in whole or in part, have insured the liability for such com- 
 pensation; provided, however, that payment in whole or 
 in part of such compensation by either the employer or the 
 insurance company, shall, to the extent thereof, be a bar to
 
 11 10 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 recovery against the other of the amount so paid, and pro- 
 vided further, that as between the employer and the insurance 
 company, payment by either directly to the employe", or 
 to the person entitled to compensation, shall be subject 
 to the conditions of the insurance contract between 
 them. 
 
 SEC. 2394-27. Every contract for the insurance of the 
 compensation herein provided for, or against liability there- 
 for, shall be deemed to be made subject to the provisions 
 of this act, and provisions thereof inconsistent with this 
 act shall be void. No company shall enter into any such 
 contract of insurance unless such company shall have been 
 approved by the commissioner of insurance, as provided by 
 law. For the purposes of this act, each employe" shall 
 constitute a separate risk within the meaning of section 
 1898d of the statutes. 
 
 RELEASE FROM LIABILITY 
 
 SEC. 2394-28. Any employer against whom liability may 
 exist for compensation under this act may, with the approval 
 of the industrial accident board, be relieved therefrom by: 
 
 1. Depositing the present value of the total unpaid com- 
 pensation for which such liability exists, assuming interest 
 at three per centum per annum, with such trust company 
 of this State as shall be designated by the employe (or by 
 his dependents, in case of his death, and such liability exists 
 in their favor), or in default of such designation by him (or 
 them) after ten days' notice in writing from the employer, 
 with such trust company of this State as shall be designated 
 by the board; or 
 
 2. By the purchase of an annuity, within the limitations 
 provided by law, in any insurance company granting annui- 
 ties and licensed in this State, which may be designated by 
 the employe", or his' dependents, or the board, as provided 
 in subsection 1 of this section.
 
 TEXTS OF COMPENSATION ACTS 1111 
 
 Wisconsin 
 
 POSTING OF NOTICES 
 
 SEC. 2394-29. The board shall cause to be printed and 
 furnished free of charge to any employer or employes such 
 blank forms as it shall deem requisite to facilitate or promote 
 the efficient administration of this act; it shall provide a 
 proper record book hi which shall be entered and indexed the 
 name of every employer who shall file a statement of election 
 under this act, and the date of the filing thereof, and a sep- 
 arate book in which shall be entered and indexed the name 
 of every employer who shall file his notice of withdrawal 
 of such election, and the date of the filing thereof; and books 
 in which shall be recorded all orders and awards made by 
 the board, and such other books or records as it shall deem 
 required by the proper and efficient administration of this 
 act; all such records to be kept in the office of the board. 
 Upon the filing of a statement of election by an employer 
 to become subject to the provisions of this act, the board 
 shall forthwith cause notice of the fact to be given to his 
 employes, by posting such notice thereof in several con- 
 spicuous places in the office, shop, or place of business of the 
 employer, or by publishing, or in such other manner as the 
 board shall deem most effective; and the board shall likewise 
 cause notice to be given of the filing of any withdrawal of 
 such election; but notwithstanding the failure to give, or 
 the insufficiency of, any such notice, knowledge of all filed 
 statements of election and notices of withdrawal of election, 
 and of the time of the filing of the same, shall conclusively 
 be imputed to all employes. 
 
 APPROPRIATION 
 
 SEC. 2394-30. A sum sufficient to carry out the provisions 
 of this act is hereby appropriated out of any money hi the 
 treasury not otherwise appropriated. 
 
 SEC. 2394-31. All acts or parts of acts inconsistent with
 
 1112 BRADBURY'S WORKMEN'S COMPENSATION LAW 
 
 Wisconsin 
 
 this act are to be deemed replaced by this act, and to that 
 end are hereby repealed. 
 
 LEGISLATIVE INTENT 
 
 SEC. 2394-32. The legislature intends the contingency in 
 subdivision 2 of section 2394-1 of this act to be a separable 
 part thereof, and the subdivision likewise separable from 
 the rest of the act, and that part of said section 2394-1 
 that follows subdivision 2, likewise separable from the rest 
 of the act; so that any part of said subdivision, or the whole, 
 or that part which follows said subdivision 2, may fail without 
 affecting any other part of the act. 
 
 SEC. 2. Section 2394-3 to 2394-32, inclusive, shall take 
 effect and be in force from and after the passage and publica- 
 tion of this act, and the entire act shall be in force from and 
 after September 1st, 1911.
 
 INDEX 
 
 [References are to Pages] 
 
 A 
 
 ABATEMENT AND REVIVAL; 
 
 death of dependent; claim for compensation by personal rep- 
 resentative 212 
 
 dependent; representative of deceased dependent 322 
 
 ABOLITION OF DEFENSES 1 
 
 California 8 
 
 Illinois 10 
 
 Kansas 13, 144 
 
 Massachusetts . 17 
 
 Michigan 22 
 
 Nevada 24 
 
 New Hampshire 26 
 
 New Jersey 27 
 
 Ohio 30 
 
 Rhode Island 33 
 
 Washington 34 
 
 Wisconsin 36 
 
 ACCELERATION OR AGGRAVATION OF PRE-EXISTING 
 DISEASE; 
 
 accidental bodily injury 64 
 
 ACCIDENTAL BODILY INJURY; 
 
 acceleration or aggravation of pre-existing disease 64 
 
 acting on emergency 98 
 
 acting on orders supposed to be authoritative 98 
 
 anaesthetic administered for purpose of operation 67 
 
 anthrax from handling wool 64 
 
 apoplexy 58 
 
 beat hand or beat knee 55 
 
 bite of animal 67 
 
 bite of cat on master's premises at mealtime 102 
 
 1113
 
 1114 INDEX 
 
 [References are to Pages] 
 
 ACCIDENTAL BODILY INJURY Continued 
 
 blood poisoning 68 
 
 blood poisoning caused by tight boots 70 
 
 cardiac breakdown due to heavy work 60 
 
 cause of injury not incidental to employment 107 
 
 caustic soda causing injury to skin on hands 69 
 
 collector going from house to house 105 
 
 collector using bicycle in employment without direction or 
 
 prohibition of employer 106 
 
 commercial travelers 105 
 
 death from anaesthetic administered for the purpose of per- 
 forming surgical operation 211 
 
 definition of 47 
 
 dermatitis caused by using caustic soda without gloves 69 
 
 dishwasher; injury to hands by caustic soda 69 
 
 disobeying orders 91 
 
 doing acts for which workman was not employed 94 
 
 doing forbidden acts 91 
 
 drowning from tug , 50 
 
 emergency; acting on 98 
 
 employment in a refreshment room in a station not employ- 
 ment on railway 107 
 
 engine driver hit by stone thrown by boy from bridge 101 
 
 enteritis from inhaling noxious gases 66 
 
 erysipelas from wound 70 
 
 eyesight injured by piece of steel hitting eye 52 
 
 falling from wagon 61 
 
 fits causing fall 58 
 
 frostbite 54 
 
 gas poisoning 65 
 
 germ or poison into system through break in skin 68 
 
 getting on and off vessels 82 
 
 glanders from handling hides 64 
 
 going to and from place of employment 72 
 
 going to designated place to receive pay 108 
 
 heart disease 58 
 
 heart failure 106 
 
 heat stroke 52 
 
 hypodermic needle causing blood poison 69 
 
 inferences from unexplained injuries 103 
 
 inflammation of kidneys from working in water 54 
 
 inhalation of poisonous gases; acceleration of disease of long
 
 INDEX 1115 
 
 [References are to Pages] 
 
 ACCIDENTAL BODILY INJURY Continued 
 
 standing 65 
 
 insanity indirectly resulting from bodily injury 64 
 
 "larking," joking or fooling 51, 100 
 
 lead poisoning 67 
 
 lightning striking workman 49, 102 
 
 lockjaw resulting from nail in foot 102 
 
 malicious injury by another workman 101 
 
 mealtime; accidents occurring during 89, 102 
 
 medical treatment which is defective 51 
 
 mental shock or fright 62 
 
 murder committed by robber 49 
 
 obeying orders which workman is not bound to obey 98 
 
 opening old wound by strain; septic poisoning 68 
 
 overexertion 57 
 
 paralysis 61 
 
 pneumonia from inhaling gases in mine from explosion 67 
 
 poachers; attack by 49 
 
 poison entering through blister on finger 69 
 
 reaching to recover pipe dropped from wagon 106 
 
 rebuilding station not employment on railway 107 
 
 remaining on property after suspension from work 110 
 
 returning to place of employment to get tools 109 
 
 rupture 49, 55 
 
 sailor on board ship in foreign port hit by stray bullet shot 
 
 by revolutionist 50 
 
 saving life of another 100 
 
 special policeman and messenger injured while going to and 
 
 from place of employment 103 
 
 sprains and strains 56 
 
 strikers; attack by 49 
 
 suffocation in burning house 103 
 
 suicide while insane from loss of eyesight 207 
 
 sunstroke 53 
 
 syncope 60 
 
 term "accident" used in ordinary or popular sense 48 
 
 traumatic pneumonia 61 
 
 unnecessary exposure to obvious danger 97 
 
 violation of law by fellow workman causing injury 101 
 
 what is; mixed question of law and fact 48 
 
 workman placed in position of peculiar .danger 102 
 
 See Arising out of and in the course of the employment.
 
 1116 INDEX 
 
 [References are to Pages] 
 
 ADMINISTRATOR; 
 
 deceased employer; right of workman to take out letters of 
 
 administration 397 
 
 necessity of administering on estate of deceased workman .... 324 
 
 ADMISSIONS; 
 
 answer; admission that compensation has been paid is ad- 
 mission that claim has been made 407 
 
 AGE OF INFANT; 
 
 misrepresentation as to; serious and willful misconduct 128 
 
 AGENCY; 
 
 unauthorized employment by agent of employer Ill 
 
 AGRICULTURAL WORKER; 
 
 who is 121 
 
 ALIENS; 
 
 dependents 321 
 
 ALTER EGO; 
 
 principle of xiii 
 
 ALTERNATIVE PLAN 493 
 
 California 493 
 
 Illinois 499 
 
 Kansas 499 
 
 Michigan 505 
 
 Nevada 514 
 
 New Hampshire 514 
 
 New Jersey 514 
 
 Ohio 514 
 
 Rhode Island 517 
 
 Wisconsin 530 
 
 See Insurance fund; Insurance under state supervision. 
 
 AMENDMENT OF PLEADINGS; 
 
 by arbitrator 399 
 
 AMPUTATION; 
 
 definition of; New Jersey 340 
 
 AN .ESTHETIC; 
 
 administered for purpose of operation; accidental bodily injury 67
 
 INDEX 1117 
 
 [References are to Pages] 
 
 ANCILLARY WORK TO REGULAR BUSINESS; 
 
 rebuilding railroad station; accident arising out of and in the 
 course of the employment 107 
 
 ANIMAL; 
 
 bite of; accidental bodily injury 67 
 
 bite of cat on master's premises at mealtime; accident arising 
 out of and in the course of the employment 102 
 
 ANTHRAX; 
 
 from handling wool; accidental bodily injury 64 
 
 APOPLEXY; 
 
 accidental bodily injury 68 
 
 APPEAL; 
 
 award of costs on 454 
 
 California 454 
 
 determining adequacy of lump sum paid under agreement .... 453 
 dismissal of action and making decision in arbitration proceed- 
 ings 454 
 
 Illinois 456 
 
 Kansas '. . 456 
 
 Massachusetts 456 
 
 Michigan 458 
 
 Nevada 459 
 
 New Hampshire 459 
 
 New Jersey 460 
 
 Ohio 460 
 
 order terminating weekly payments not appealed from is final 453 
 
 points raised below only considered on appeal 451 
 
 reviewing awards by 451 
 
 reviewing facts 452 
 
 Rhode Island 461 
 
 Washington 464 
 
 Wisconsin 466 
 
 APPORTIONING COMPENSATION; 
 
 among dependents; procedure 407 
 
 vocational diseases contracted partly in employment of two 
 employers 280
 
 1118 INDEX 
 
 [References are to Pages] 
 
 ARBITRATION; 
 
 agreement for compensation is a bar to arbitration proceedings 399 
 agreement to pay compensation is not a consent to submit to 
 arbitration 398 
 
 ARBITRATOR; 
 
 medical referee's report not conclusive on 386 
 
 new trial ; cannot grant 408 
 
 "ARISING OUT OF AND IN THE COURSE OF THE EM- 
 PLOYMENT" 70 
 
 acting on orders supposed to be authoritative 98 
 
 anaesthetic administered for the purpose of performing surgi- 
 cal operation causing death 211 
 
 animals; bite of cat on master's premises at mealtime 102 
 
 application of phrase to various compensation acts 41 
 
 cause of injury not incidental to employment 107 
 
 collector going from house to house 105 
 
 collector using bicycle without direction or prohibition of em- 
 ployer 106 
 
 commercial travelers injured on road 105 
 
 disobeying orders 91 
 
 doing acts for which workman not employed 94 
 
 doing forbidden acts 91 
 
 emergency; acting on 98 
 
 emergency; acting on; capturing lions which had escaped 
 
 from cage 98 
 
 emergency; acting on; driver of canal boat steering boat 99 
 
 emergency ; stopping runaway horse 99 
 
 employment in refreshment room at station not employment 
 
 on railroad 107 
 
 engine driver hit by stone thrown by boy from bridge 101 
 
 fellow workman violating law at time of injury 101 
 
 getting on and off vessels 82 
 
 going to and from place of employment 72 
 
 heart failure 106 
 
 injuries at mealtime 89 
 
 "larking" or joking 100 
 
 lightning stroke 102 
 
 lockjaw resulting from nail in foot 102 
 
 maid injured by insect flying through window where woman 
 
 working 107 
 
 malicious injury by another workman 101
 
 INDEX 1119 
 
 [References are to Pages] 
 
 " ARISING OUT OF AND IN THE COURSE OF THE EM- 
 PLOYMENT "Continued 
 
 mealtime; injuries suffered during 89 
 
 mealtime; law writer injured at lunch hour 119 
 
 obeying orders which workman is not bound to obey 98 
 
 pay day; going to a designated place to receive pay 108 
 
 pay day; returning to place of employment after employment 
 
 has ceased to receive pay 108 
 
 pay day; returning to place of employment concerning dispute 
 
 about wages 109 
 
 peculiar danger of position of workman 102 
 
 reaching for pipe dropped from wagon 106 
 
 relieving nature , 90 
 
 remaining on property after suspension from work 110 
 
 returning to place of employment to get tools 109 
 
 salesman using bicycle 106 
 
 saving life of fellow workman 100 
 
 special policeman and messenger going to and from place of 
 
 employment 103 
 
 suffocation in burning house 103 
 
 unexplained injuries; drawing inferences therefrom 103 
 
 work ancillary merely to regular business of employer; re- 
 building railroad station 107 
 
 ASSAULT; 
 
 malicious injury of one workman by another; arising out of 
 and in the course of the employment 101 
 
 ASSIGNMENT OF AWARDS 342 
 
 California 342 
 
 Illinois 342 
 
 Kansas 343 
 
 Massachusetts 343 
 
 Michigan 343 
 
 New Hampshire 343 
 
 New Jersey 344 
 
 Nevada 343 
 
 Ohio 344 
 
 Rhode Island 344 
 
 Washington 344 
 
 Wisconsin 345 
 
 See garnishment and assignment of awards.
 
 1120 INDEX 
 
 [References are to Pages] 
 
 ASSOCIATION; 
 
 definition of; Massachusetts 338 
 
 ATTORNEY'S FEES.- 346 
 
 California 346 
 
 Illinois 346 
 
 Kansas 346 
 
 Massachusetts 347 
 
 Michigan 347 
 
 Nevada 347 
 
 New Hampshire ' 347 
 
 New Jersey 348 
 
 Ohio 348 
 
 Rhode Island 348 
 
 Washington 349 
 
 Wisconsin , 349 
 
 AVERAGE WEEKLY WAGES 242 
 
 actual earnings not usual wages paid in that employment. . . 250 
 basis of compensation when workman employed in different 
 
 grades 250 
 
 definition of; Massachusetts 338 
 
 Kansas 259 
 
 Rhode Island 267 
 
 See Wages; also names of various States. 
 
 AWARD; 
 
 suspensory 406 
 
 termination of at specified date in future 407 
 
 See Compensation; Basis of award; Compensation for death, etc. 
 
 B 
 
 BASIS OF COMPENSATION; 
 
 ability to obtain same wages after as before accident in another 
 
 class of work 276 
 
 death; deducting poor-law relief received by dependent 210 
 
 death; estoppel by payment of compensation before death of 
 
 right to deny liability therefor after death 211 
 
 death; deducting wages paid to an assistant in computing com- 
 pensation 210 
 
 dependents receiving other income because of death of work- 
 man . . .324
 
 INDEX 1121 
 
 [References are to Pages] 
 
 BASIS OF COMPENSATION Continued 
 
 pain and suffering not compensated 275 
 
 partial dependent ; amount due as a question of fact 209 
 
 partial or temporary disability; deducting hospital fees from 
 
 compensation 279 
 
 partial or temporary disability; disability by disease accelerated 
 
 by accident 280 
 
 partial or temporary disability; vocational diseases; contracted 
 partly in employment of two employers; apportioning com- 
 pensation 280 
 
 partial or temporary disability; wages and compensation after 
 
 accident need not equal wages before injury 277 
 
 partial or temporary disability; wages paid seaman under Ship- 
 ping Act taken into account in awarding compensation. . . . 278 
 partial or temporary disability; workman receiving the same 
 
 wages after as before injury 277 
 
 probable earnings; infant. 277 
 
 reduced earnings owing to general fall in wages 276 
 
 total dependency of mother on one son when other sons are 
 
 living 209 
 
 wages and compensation in excess of wages before accident . . 277 
 See Death, compensation for; also names of various States. 
 
 BEAT HAND; 
 
 accidental bodily injury 55 
 
 BEAT KNEE; 
 
 accidental bodily injury 55 
 
 BELGIUM; 
 
 compensation act xxviii 
 
 BITE OF ANIMAL; 
 
 accidental bodily injury 67 
 
 attack by cat on master's premises at mealtime; accident 
 arising out of and in the course of the employment 102 
 
 BLISTER; 
 
 poison entering through; accidental bodily injury 69 
 
 BLOOD POISONING; 
 
 accidental bodily injury 68 
 
 caused by tight boots; accidental bodily injury 70 
 
 71 "
 
 1122 INDEX 
 
 [References are to Pages] 
 
 BRITISH COMPENSATION ACT 852 
 
 history of xiv 
 
 BUILDING WORK; 
 
 definition of; Kansas 336 
 
 BURDEN OF PROOF; 
 
 injury caused by accident; burden is on workman 399 
 
 modifying awards; diminishing payments 484 
 
 serious and willful misconduct 403 
 
 See Evidence; Procedure. 
 
 BURNING BUILDING; 
 
 suffocation of servant; accident arising out of and in the course 
 of the employment 103 
 
 BY WHOM LAW ADMINISTERED AND HOW AWARDS 
 DETERMINED; 
 
 forms of petitions, answers and awards 396 
 
 See Procedure; also the names of the various States. 
 
 c 
 
 CALIFORNIA; 
 
 abolition of defenses 8 
 
 alternative plan 493 
 
 appeal 454 
 
 assignment of award 342 
 
 attorney's fees 346 
 
 casual employe 133 
 
 commutation of award 295 
 
 compromising claims and awards 574 
 
 contracts presumed to be subject to act 567 
 
 death; compensation for 212 
 
 definitions not classified 334 
 
 dependents 324 
 
 domestic servants 133 
 
 election of remedies 9 
 
 election to come under act; how made 134 
 
 exempting employers from operation of act 190 
 
 expenses of administering law 579 
 
 fees and costs 552 
 
 funerAl expenses 202
 
 INDEX 1123 
 
 [References are to Pages] 
 
 CALIFORNIA Continued 
 
 garnishment of award 342 
 
 industrial accident board 408 
 
 insurance companies; enforcement of claims against 561 
 
 limitations 376 
 
 medical attention 197 
 
 modifying awards 487 
 
 notice of injury 363 
 
 partial or temporary disability; compensation for 281 
 
 penalties 531 
 
 permanent disability; definition of 303 
 
 permanent partial disability; definition of 309 
 
 physical examination 386 
 
 preference of claims 556 
 
 procedure 408 
 
 repealing act 584 
 
 reports of injuries and awards 535 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 181 
 
 subrogation 352 
 
 temporary partial disability; definition of 312 
 
 temporary total disability; definition of 306 
 
 text of Compensation Act 872 
 
 total or permanent disability, compensation for 253 
 
 to whom act applies 132 
 
 wages; how computed 254 
 
 when compensation begins 193 
 
 when law becomes effective 547 
 
 CARDIAC BREAKDOWN; 
 
 due to heavy work; accidental bodily injury 60 
 
 CARPENTER; 
 
 employed to do repairs; when casual employe 122 
 
 CASUAL EMPLOYE, 
 
 bricklayer employed to repair farm buildings 122 
 
 California 133 
 
 carpenter employed to do repairs 122 
 
 domestic employed occasionally 122 
 
 Illinois 140, 335 
 
 laborer employed to do whitewashing 122
 
 1124 INDEX 
 
 [References are to Pages] 
 
 CASUAL EMPLOYE Continued 
 
 Michigan 148 
 
 who is 121 
 
 who is; workman repairing private residence 123 
 
 window cleaner 121 
 
 Wisconsin 173 
 
 CAUSE OF INJURY; 
 
 not incidental to employment; accident arising out of and in 
 the course of the employment 107 
 
 CAUSTIC SODA; 
 
 injury to hands; accidental bodily injury 69 
 
 CHARITABLE ORGANIZATION; 
 
 employe of; when a workman 120 
 
 CHEMIST; 
 
 when not workman 119 
 
 CHIPPING STEEL; 
 
 eyesight injured; accidental bodily injury 52 
 
 CLUMSINESS; 
 
 incapacity on the ground of clumsiness due to injury 278 
 
 COLLECTOR GOING FROM HOUSE TO HOUSE; 
 
 accident arising out of and in the course of the employment. . 105 
 using bicycle without direction on prohibition of employer; ac- 
 cident arising out of and in the course of the employment . . 106 
 
 COMMERCIAL TRAVELERS; 
 
 injured on road; accident arising out of and in the course of the 
 employment 105 
 
 COMMUTATION OF AWARD 294 
 
 appeal; determining adequacy of lump sum paid under agree- 
 ment 453 
 
 California 295 
 
 Illinois 295 
 
 Kansas 296 
 
 Massachusetts . 298
 
 INDEX: 1125 
 
 [References are to Pages] 
 
 COMMUTATION OF AWARD Continued 
 
 Michigan 298 
 
 Nevada 298 
 
 New Hampshire 299 
 
 New Jersey 299 
 
 Ohio 299 
 
 Rhode Island 300 
 
 Washington 301 
 
 Wisconsin . . , 302 
 
 COMPENSATION; 
 
 basis of computation; death; compensation for previous injury 
 not included in determining basis of compensation for sub- 
 sequent injury causing death 210 
 
 basis of; death; deducting poor law relief received by depend- 
 ent 210 
 
 death; wages paid to an assistant in computing compensation 210 
 
 partial dependent; amount due is a question of fact 209 
 
 See Death, compensation for; also names of various States. 
 
 COMPENSATION ACT; 
 
 Belgium xxviii 
 
 British , 852 
 
 British; history of xiv 
 
 Denmark xxviii 
 
 France xxvii 
 
 four general forms of such acts in the United States xxix 
 
 Germany xviii 
 
 Holland xxix 
 
 Italy xxviii 
 
 liberal construction of 334 
 
 Norway xxviii 
 
 Sweden xxviii 
 
 text of; California 872 
 
 text of; Illinois 895 
 
 text of; Kansas 913 
 
 text of; Massachusetts 935 
 
 text of; Michigan 955 
 
 text of; Nevada 989 
 
 text of; New Hampshire 998 
 
 text of; New Jersey 1006 
 
 text of; Ohio. . . . 1021
 
 1126 INDEX 
 
 [References are to Pages] 
 
 COMPENSATION ACT Continued 
 
 text of; Rhode Island and Providence Plantations 1033 
 
 text of; Washington 1058 
 
 text of; Wisconsin 1091 
 
 COMPROMISING CLAIMS AND AWARDS 571 
 
 California 574 
 
 effect of agreement to pay compensation during incapacity . . 399 
 
 Illinois 574 
 
 Kansas 575 
 
 Massachusetts 575 
 
 Michigan 575 
 
 Nevada 576 
 
 New Hampshire 576 
 
 New Jersey 577 
 
 Ohio 577 
 
 Rhode Island 577 
 
 Washington 577 
 
 Wisconsin 578 
 
 CONFLICT OF LAWS; 
 
 accident happening without the state of the residence of em- 
 ployer or workman; application of compensation acts 44 
 
 CONSTITUTIONAL LAW; 
 
 decision on compensation act; Massachusetts 650 
 
 decision on compensation act; New York 592 
 
 decision on compensation act; Ohio 764 
 
 decision on compensation act; Washington 703 
 
 decision on compensation act; Wisconsin 656 
 
 decision on employers' liability acts, United States Supreme 
 
 Court 785 
 
 CONTRACTS; 
 
 presumed to be subject to act; California 567 
 
 presumed to be subject to act; Illinois 568 
 
 presumed to be subject to act; Kansas 568 
 
 presumed to be subject to act; Massachusetts 569 
 
 presumed to be subject to act; Michigan 569 
 
 presumed to be subject to act; Nevada 569 
 
 presumed to be subject to act; New Hampshire 569 
 
 presumed to be subject to act; New Jersey 569
 
 INDEX 1127 
 
 [References are to Pages] 
 
 CONTRACTS Continued 
 
 presumed to be subject to act; Ohio 569 
 
 presumed to be subject to act; Rhode Island 570 
 
 presumed to be subject to act; Washington 570 
 
 presumed to be subject to act; Wisconsin 570 
 
 See Exempting employers from operation of act. 
 
 CONTRACTOR; 
 
 independent; when not a workman 117 
 
 CONVICT; 
 
 not entitled to compensation 275 
 
 COSTS; 
 
 award of costs on appeal 454 
 
 See Fees and costs. 
 
 D 
 
 DANGER TO WORKMAN PECULIAR TO PARTICULAR 
 POSITION; 
 accident arising out of and in the course of the employment. . 102 
 
 DEATH; 
 
 compensation for; amount due partial dependent is a question 
 
 of fact 209 
 
 compensation for; anaesthetic administered for the purpose of 
 
 performing operation 211 
 
 compensation for; California 212 
 
 compensation for; claim for compensation by personal repre- 
 sentatives of deceased dependent 212 
 
 compensation for; deducting poor law relief received by de- 
 pendent 210 
 
 compensation for; deducting wages paid to assistant in com- 
 puting compensation 210 
 
 compensation for; estoppel by payment of compensation before 
 
 death of right to deny liability therefor after death 211 
 
 compensation for; illegitimate child 208 
 
 compensation for; Illinois 213 
 
 compensation for; Kansas 217 
 
 compensation for; Massachusetts 218 
 
 compensation for; Michigan 219 
 
 compensation for; Nevada 220
 
 1128 INDEX 
 
 [References are to Pages] 
 
 DEATH Continued 
 
 compensation for; New Hampshire 221 
 
 compensation for; New Jersey 222 
 
 compensation for; Ohio 224 
 
 compensation for; presumption of death from absence 208 
 
 compensation for; previous injury; compensation for not in- 
 cluded in determining basis of compensation for subsequent 
 
 injury causing death 210 
 
 compensation for; Rhode Island 225 
 
 compensation for; suicide while insane from loss of eyesight. . 207 
 compensation for; total dependency of mother on one son when 
 
 other sons are living 209 
 
 compensation for; Washington 227 
 
 compensation for; when death not natural or probable conse- 
 quence of injury 207 
 
 compensation for; when death occurs after compensation has 
 
 been paid for a time 208 
 
 compensation for; Wisconsin 229 
 
 compensation to dependents for 206 
 
 DEBTOR AND CREDITOR; 
 
 seizure of awards for debt 342 
 
 See Garnishment; Assignment. 
 
 DECEASED EMPLOYER; 
 
 right of workman to take out letters of administration on 
 estate 397 
 
 DEFENSES; 
 
 abolition of 1 
 
 See Abolition of defenses. 
 
 DEFINITIONS; 
 
 not classified 334 
 
 not classified; California 334 
 
 not classified; Illinois 334 
 
 not classified; Kansas 335 
 
 not classified; Massachusetts 337 
 
 not classified; Michigan 339 
 
 not classified ; Nevada 339 
 
 not classified; New Hampshire 339 
 
 not classified; New Jersey 339
 
 INDEX 1129 
 
 [References are to Pages] 
 
 DEFINITIONS Continued 
 
 not classified; Ohio 340 
 
 not classified; Rhode Island 340 
 
 not classified; Washington 341 
 
 not classified; Wisconsin 341 
 
 "DELIBERATE INTENT" OF EMPLOYE TO CAUSE INJURY; 
 
 Illinois 140 
 
 Kansas 141 
 
 DENMARK; 
 
 compensation act xxviii 
 
 DEPARTMENTAL COMMITTEE; 
 
 report on right to assess compensation after failure of action 
 for damages ix 
 
 DEPENDENTS; 
 
 aliens 321 
 
 apportioning compensation among; procedure 407 
 
 California 324 
 
 claim by dependents when compensation to workman termi- 
 nated before death 323 
 
 death; compensation for; amount due partial dependent is a 
 
 question of fact 209 
 
 death; compensation for; total dependency of mother on one 
 
 son when other sons are living 209 
 
 deceased; claim for compensation by personal representatives. 212 
 father dependent of son; allowance for son's maintenance. . . . 317 
 
 general meaning of word 315 
 
 illegitimate children 319 
 
 illegitimate child; compensation for death 208 
 
 Illinois 325 
 
 inmate of workhouse 321 
 
 Kansas 325 
 
 Massachusetts 326, 338 
 
 Michigan 327 
 
 mother of illegitimate child as dependent of father of child . . . 320 
 
 mother whose husband is living as dependent of son 317 
 
 necessity of administering on estate of deceased workman 324 
 
 Nevada 328 
 
 New Hampshire 328
 
 1130 INDEX 
 
 [References are to Pages] 
 
 DEPENDENTS Continued 
 
 New Jersey 329 
 
 of more than one workman 315 
 
 Ohio 329 
 
 parents 316 
 
 parents of illegitimate children 319 
 
 partial and total dependents of same workman 316 
 
 posthumous child 320 
 
 posthumous illegitimate child 320 
 
 pauper 321 
 
 question of dependency is one of fact 324 
 
 receiving other income because of death of workman 324 
 
 representative of deceased dependent 322 
 
 Rhode Island 329 
 
 right of dependents independent of that of deceased 323 
 
 Washington 167, 330 
 
 who are 314 
 
 widow and children dependents of father when other children 
 
 contributed to support of family 318 
 
 wife separated from husband before his death 318 
 
 Wisconsin 331 
 
 DERMATITIS; 
 
 caused by using caustic soda without gloves; accidental bodily 
 
 injury 69 
 
 DISABILITY; 
 
 classification of 234 
 
 DISEASE; 
 
 acceleration or aggravation of pre-existing disease; accidental 
 
 bodily injury 64 
 
 inhalation of poisonous gases; acceleration of disease long 
 
 standing 65 
 
 DISHWASHER; 
 
 injury to hands by caustic soda; accidental bodily injury. ... 69 
 
 DISOBEDIENCE OF ORDERS AND RULES; 
 
 serious and willful misconduct 128 
 
 accident arising out of and in the course of the employment . . 91 
 acting on orders supposed to be authoritative ; accident arising 
 
 out of and in the course of the employment 98
 
 INDEX 1131 
 
 [References are to Pages] 
 
 DISOBEDIENCE OF ORDERS AND RULES Continued 
 
 obeying orders which workman is not bound to obey; accident 
 arising out of and in course of employment 98 
 
 DOMESTIC; 
 
 employed occasionally; when casual employe 122 
 
 See to whom act applies; also names of various States. 
 
 DOUBLE COMPENSATION; 
 
 death; compensation for previous injury not included in deter- 
 mining basis of compensation for subsequent injury causing 
 death 210 
 
 DROWNING; 
 
 from tug; accidental bodily injury 50 
 
 DRUNKENNESS; 
 
 Kansas 141 
 
 serious and willful misconduct 127 
 
 See Intoxication. 
 
 EARNINGS; 
 
 actual not usual wages paid in that employment 250 
 
 how determined; Illinois 215 
 
 how determined; Kansas 217 
 
 See Average weekly wages; Wages. 
 
 ELECTION OF REMEDIES 1 
 
 assessment of compensation after failure of suit for damages; 
 
 report of Departmental Committee ix 
 
 California 9 
 
 Illinois 12 
 
 Kansas 16 
 
 Massachusetts 19 
 
 Michigan 23 
 
 negligence as affecting Kansas 141 
 
 Nevada 25 
 
 New Hampshire 26 
 
 New Jersey 29 
 
 Ohio 31 
 
 Washington 35 
 
 Wisconsin . . 38
 
 1132 INDEX 
 
 [References are to Pages] 
 
 ELECTION TO ACCEPT COMPENSATION PRINCIPLE. . . 39 
 
 as to part of employes only 42 
 
 different methods of electing 40 
 
 employer has first election 40 
 
 California 134 
 
 Illinois 137 
 
 Kansas 143 
 
 Massachusetts 145 
 
 Michigan 147 
 
 New Hampshire 155 
 
 New Jersey 157 
 
 Ohio 159 
 
 Rhode Island 161 
 
 Washington 170 
 
 Wisconsin . . .172 
 
 ELECTRICAL WORK; 
 
 definition of; Kansas 336 
 
 EMERGENCY; 
 
 acting on; accident arising out of and in the course of the 
 
 employment 98 
 
 acting on; driver on canal boat steering boat; accident arising 
 
 out of and in the course of the employment 99 
 
 acting on; stopping runaway horse; accident arising out of and 
 
 in the course of the employment 99 
 
 capturing lions which escaped from cage; accident arising out 
 
 of and in the course of the employment 98 
 
 saving life of fellow workman; accident arising out of and in 
 
 the course of the employment 100 
 
 EMPLOYE; 
 
 definition ; Illinois 334 
 
 definition of; Massachusetts 337 
 
 definition of; Rhode Island 334 
 
 definition of; Wisconsin 341 
 
 EMPLOYER; 
 
 definition of; Kansas 337 
 
 definition of; Rhode Island 340 
 
 See To whom act applies; also the names of the various States.
 
 INDEX 1133 
 
 [References are to Pages] 
 
 EMPLOYERS' LIABILITY; 
 
 alter ego principle xiii 
 
 constitutional law; decisions of United States Supreme Court 
 
 on employers' liability acts 785 
 
 fellow servant doctrine; origin of xii 
 
 ENGINEERING WORK; 
 
 definition of; Kansas 336 
 
 ENGINE DRIVER; 
 
 hit by stone thrown by boy from bridge; accident arising out 
 of and in the course of the employment 101 
 
 ENTERITIS; 
 
 from inhaling noxious gases; accidental bodily injury 66 
 
 ERYSIPELAS; 
 
 from wound; accidental bodily injury 70 
 
 ESTOPPEL; 
 
 payment of compensation before death as affecting right to 
 deny liability therefor after death 211 
 
 EVIDENCE; 
 
 burden of proof; diminishing payments; modifying awards. . . 484 
 
 burden of proof; failure to give notice; lack of prejudice 360 
 
 burden of proof ; serious and willful misconduct 403 
 
 burden of proving the injury was caused by accident is on the 
 
 workman 399 
 
 death; presumption of from absence 208 
 
 finding on question of fact as to which there is any evidence to 
 
 support 404 
 
 inferences from unexplained injuries 103 
 
 inferences in the absence of direct proof 400 
 
 hearsay; statement by deceased workman as to cause of injury 404 
 hearsay; statement by employe in absence of his employer as 
 
 to bodily or mental feelings 403 
 
 EXAGGERATION OF INJURY; 
 
 ability to do light work after accident 276 
 
 EXAMINATIONS BY PHYSICIANS 383 
 
 See Physical examinations.
 
 1134 INDEX 
 
 [References are to Pages] 
 
 EXECUTION AGAINST PERSON; 
 
 enforcing payment of award by 407 
 
 EXEMPTING EMPLOYERS FROM OPERATION OF ACT. . 188 
 
 California 190 
 
 Illinois 190 
 
 Kansas 190 
 
 Massachusetts ' 191 
 
 Michigan 191 
 
 Nevada 191 
 
 New Hampshire 191 
 
 New Jersey 191 
 
 Ohio 192 
 
 Rhode Island 192 
 
 Washington 192 
 
 Wisconsin 192 
 
 EXPENSES OF ADMINISTERING LAW; 
 
 California 579 
 
 Illinois 579 
 
 Kansas 579 
 
 Massachusetts 580 
 
 Michigan 580 
 
 Nevada 581 
 
 New Hampshire 581 
 
 New Jersey 581 
 
 Ohio 581 
 
 Rhode Island 582 
 
 Washington 583 
 
 Wisconsin 583 
 
 EXPLOSION; 
 
 poisoning from inhaling gas in mine producing pneumonia; 
 
 accidental bodily injury 67 
 
 F 
 
 FACTORY; 
 
 definition; Kansas 335 
 
 FALLING FROM WAGON; 
 
 accidental bodily injury 61
 
 INDEX 1135 
 
 [References are to Pages] 
 
 FATHER; 
 
 as dependent of son 316 
 
 FEES AND COSTS 551 
 
 California 552 
 
 Illinois 552 
 
 Kansas 552 
 
 Massachusetts 552 
 
 Michigan 553 
 
 Nevada 553 
 
 New Hampshire 553 
 
 New Jersey 554 
 
 Ohio 554 
 
 Rhode Island 554 
 
 Washington 554 
 
 Wisconsin 555 
 
 FELLOW SERVANT; 
 
 doctrine and origin of xii 
 
 malicious injury of one fellow servant by another; accident 
 
 arising out of and in the course of the employment 101 
 
 violation of law by causing injury to co-employe; arising out 
 
 of and in the course of the employment 101 
 
 See Abolition of defenses 
 
 FINDING; 
 
 question of fact; effect of finding when there is any evidence 
 to support it 404 
 
 FIREMAN; 
 
 policeman acting as; when not workman 119 
 
 FITS CAUSING FALL; 
 
 accidental bodily injury 58 
 
 FOOLING; 
 
 accidental bodily injury 51 
 
 FOOTBALL PLAYER; 
 
 when a workman 119 
 
 FORBIDDEN ACTS; 
 
 injury arising out of and in the course of employment 91
 
 1136 INDEX 
 
 [References are to Pages] 
 
 FRANCE; 
 
 compensation act xxvii 
 
 FROSTBITE; 
 
 accidental bodily injury 54 
 
 FUNERAL EXPENSES 202 
 
 California 202 
 
 Illinois 202 
 
 Kansas 202 
 
 Massachusetts 203 
 
 Michigan 203 
 
 Nevada 203 
 
 New Hampshire 203 
 
 New Jersey 204 
 
 Ohio 204 
 
 Rhode Island 204 
 
 Washington 204 
 
 Wisconsin ." . . 205 
 
 G 
 
 GARNISHMENT OF AWARDS 342 
 
 California 342 
 
 Illinois 342 
 
 Kansas 343 
 
 Massachusetts t 343 
 
 Michigan 343 
 
 Nevada 343 
 
 New Hampshire 343 
 
 New Jersey 344 
 
 Ohio 344 
 
 Rhode Island 344 
 
 Washington 344 
 
 Wisconsin 345 
 
 GAS POISONING; 
 
 acceleration of disease of long standing; accidental bodily in- 
 jury 65 
 
 accidental bodily injury 65 
 
 enteritis from inhaling noxious gases; accidental bodily injury 66 
 pneumonia from inhaling gas from explosion in mine; acci- 
 dental bodily injury ,,.,..,.,, 67
 
 INDEX 1137 
 
 [References are to Pages] 
 
 GERM; 
 
 poisoning through break in skin; accidental bodily injury. ... 68 
 
 GERMANY; 
 
 compensation act xviii 
 
 GETTING ON AND OFF VESSELS; 
 
 accidents arising out of and in the course of employment .... 82 
 
 GLANDERS; 
 
 from handling hides; accidental bodily injury 64 
 
 GOING TO AND FROM PLACE OF EMPLOYMENT; 
 
 accident happening while on the way 72 
 
 GUARDIAN AD LITEM; 
 
 necessity of appointment in proceeding under act 397 
 
 H 
 
 HEART DISEASE; 
 
 accidental bodily injury 58 
 
 HEART FAILURE; 
 
 accident arising out of and in the course of the employment . . 106 
 
 HEAT STROKE; 
 
 accidental bodily injury 52 
 
 HOLLAND; 
 
 compensation act xxix 
 
 HOSPITAL FEES; 
 
 deducting from compensation 279 
 
 HYPODERMIC NEEDLE CAUSING BLOOD POISON; 
 
 accidental bodily injury 69 
 
 ILLEGITIMATE CHILD; 
 
 compensation for death 208
 
 1138 INDEX 
 
 [References are to Pages] 
 
 ILLINOIS; 
 
 abolition of defenses 10 
 
 alternative plan. 499 
 
 appeal 456 
 
 assignment of award 342 
 
 attorney's fees 346 
 
 casual employe 140, 335 
 
 commutation of award 295 
 
 compromising claims and awards 574 
 
 contracts presumed to be subject to act 567 
 
 death; compensation for 213 
 
 definitions not classified 334 
 
 "deliberate intention" to cause injury 140 
 
 dependents 325 
 
 earnings; how determined 215 
 
 election of remedies 12 
 
 election to come under act; how made 137 
 
 employe; definition 334 
 
 exempting employers from operation of act 190 
 
 expenses of administering law 579 
 
 fees and costs 552 
 
 funeral expenses 202 
 
 garnishment of award 342 
 
 insurance companies; enforcement of claims against 562 
 
 limitations 377 
 
 medical attention 197 
 
 modifying awards 487 
 
 notice of injury 364 
 
 partial or temporary disability; compensation for 281 
 
 penalties 531 
 
 permanent disability; definition of 303 
 
 physical examination 387 
 
 preferences of claims 556 
 
 procedure 411 
 
 repealing act 584 
 
 reports of injuries and awards 538 
 
 safety regulations; failure to obey; penalty 139 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 181 
 
 subrogation 352 
 
 temporary partial disability; definition of 312 
 
 temporary total disability; definition of 306 
 
 text of Compensation Act 895
 
 INDEX 1139 
 
 [References are to Pages] 
 
 ILLINOIS Continued 
 
 total or permanent disability; compensation for 256 
 
 to whom act applies 136 
 
 when law becomes effective 547 
 
 when compensation begins 193 
 
 INCAPACITY; 
 
 sufficiency of finding of 404 
 
 INCOMPETENT; 
 
 appointment of guardian ad litem in proceedings under act. . . 397 
 
 INDEMNITY; 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor 176 
 
 INDEPENDENT CONTRACTOR; 
 
 when not a workman 117 
 
 INFANT; 
 
 misrepresentation as to age; serious and willful misconduct . . 128 
 
 INFERENCES; 
 
 absence of direct proof; what may be inferred 400 
 
 unexplained injuries 103 
 
 INFLAMMATION OF KIDNEYS; 
 
 from working in water; accidental bodily injury 54 
 
 INHALATION OF POISONOUS GASES; 
 
 accelerating disease of long standing; accidental bodily injury 65 
 
 INSANITY; 
 
 indirectly resulting from accidental bodily injury 64 
 
 INSECT FLYING THROUGH WINDOW; 
 
 injury to eye of lady's maid; accident arising out of and in the 
 course of the employment 107 
 
 INSURANCE; 
 
 contracts presumed to be subject to acts 567 
 
 failure of workman to give notice of injury; prejudice; omission 
 of notice to insurance company by employer 362
 
 1140 INDEX 
 
 INSURANCE COMPANIES; 
 
 enforcement of claims against 560 
 
 enforcement of claims against; California 561 
 
 enforcement of claims against ; Illinois 562 
 
 enforcement of claims against; Kansas 562 
 
 enforcement of claims against; Massachusetts 563 
 
 enforcement of claims against; Michigan 563 
 
 enforcement of claims against; Nevada 564 
 
 enforcement of claims against; New Hampshire 564 
 
 enforcement of claims against; New Jersey 564 
 
 enforcement of claims against ; Ohio 564 
 
 enforcement of claims against; Rhode Island 565 
 
 enforcement of claims against; Washington 565 
 
 enforcement of claims against; Wisconsin 575 
 
 subrogation by and against 350 
 
 INSURANCE FUND; 
 
 how created 493 
 
 Massachusetts Employes' Insurance Association; creation and 
 
 government of 500 
 
 Ohio 514 
 
 Washington 518 
 
 INSURANCE UNDER STATE SUPERVISION; 
 
 Michigan 508 
 
 Ohio 514 
 
 Washington 518 
 
 INTERSTATE COMMERCE; 
 
 application of act to; Kansas 143 
 
 Michigan 150 
 
 Washington 169 
 
 INTOXICATION; 
 
 Kansas 141 
 
 New Hampshire , 156 
 
 serious and willful misconduct 127 
 
 ITALY; 
 
 compensation act xxvii
 
 INDEX 1141 
 
 [References are to Pages] 
 
 JOKING; 
 
 accidental bodily injury 51 
 
 accident arising out of and in the course of the employment . . 100 
 
 JURISDICTION; 
 
 accident happening without the State of the residence of the 
 
 employer or the workman 44 
 
 K 
 
 KANSAS; 
 
 abolition of defenses 13, 144 
 
 alternative plan 499 
 
 appeal 456 
 
 assignment of award 343 
 
 attorney's fees 346 
 
 average weekly wages 259 
 
 building work; definition of 336 
 
 commutation of award 396 
 
 death; compensation for 217 
 
 compromising claims and awards 575 
 
 contracts presumed to be subject to act 568 
 
 definitions not classified 335 
 
 deliberate intention to cause injury 141 
 
 dependents 325 
 
 earnings; how determined 217 
 
 election of remedies 16 
 
 election to come under act; how exercised 143 
 
 election to come under act; minors and incompetents 143 
 
 electrical work; definition of 336 
 
 employer; definition of 337 
 
 engineering work; definition of 336 
 
 exempting employers from operation of act 190 
 
 expenses of administering law 579 
 
 factory; definition 335 
 
 fees and costs 552 
 
 funeral expenses 202 
 
 garnishment of award 343 
 
 insurance companies; enforcement of claims against 562 
 
 interstate commerce; application of act 143 
 
 intoxication 141 
 
 limitations . . 377
 
 1142 INDEX 
 
 [References are to Pages] 
 
 KANSAS Continued 
 
 medical attention 198 
 
 mine; definition 336 
 
 modifying awards 487 
 
 negligence as affecting election of remedies 141 
 
 partial or temporary disability; compensation for 281 
 
 notice of injury 365 
 
 penalties 532 
 
 permanent disability; definition of 303 
 
 permanent partial disability; definition of 309 
 
 physical examination 388 
 
 preferences of claims 557 
 
 procedure 412 
 
 quarry; definition of 336 
 
 railway; definition of 335 
 
 repealing act 585 
 
 reports of injuries and awards 539 
 
 safety guard; failure to use; effect 141 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 182 
 
 subrogation 353 
 
 temporary partial disability; Kansas 312 
 
 temporary total disability; definition of 306 
 
 text of Compensation Act 913 
 
 total or permanent disability; compensation for 259 
 
 to whom act applies 141 
 
 when compensation begins 193 
 
 when law becomes effective 547 
 
 workman; definition of 337 
 
 L 
 
 "LARKING"; 
 
 accidental bodily injury 51 
 
 accident arising out of and in the course of the employment . . 100 
 
 LAW WRITER; 
 
 when he is a workman 119 
 
 LEAD POISONING; 
 
 accidental bodily injury 67 
 
 LIBERAL CONSTRUCTION OF COMPENSATION ACT. . . 334
 
 INDEX 1143 
 
 [References are to Pages] 
 
 LIGHTNING; 
 
 accidental bodily injury caused by 49 
 
 struck by; accident arising out of and in the course of the em- 
 ployment 102 
 
 LIMITATIONS; 
 
 actions and proceedings under act 376 
 
 California 376 
 
 Illinois 377 
 
 Kansas 377 
 
 Massachusetts 378 
 
 Michigan 379 
 
 Nevada 379 
 
 New Hampshire 380 
 
 New Jersey 380 
 
 Ohio 380 
 
 Rhode Island 381 
 
 Washington 381 
 
 Wisconsin 382 
 
 LOCKJAW; 
 
 resulting from nail in foot; accident arising out of and in the 
 course of the employment 102 
 
 LUMP SUM PAYMENT. See Commutation. 
 
 M 
 
 MALICIOUS INJURY BY ANOTHER WORKMAN; 
 
 arising out of and in the course of the employment 101 
 
 MALINGERING; 
 
 exaggeration of injuries; ability to do light work after accident 276 
 modifying award when continued disability due to idleness 
 
 and softened muscles 480 
 
 voluntary idleness of workman as tending to prolong disability 279 
 
 MANAGER; 
 
 when not workman 119 
 
 MASSACHUSETTS; 
 
 abolition of defenses 17 
 
 appeal 456
 
 1144 INDEX 
 
 [References are to Pages] 
 
 MASSACHUSETTS Continued 
 
 assignment of award 343 
 
 association; definition of 338 
 
 attorney's fees 347 
 
 average weekly wages; definition of 338 
 
 commutation of award 298 
 
 compromising claims and awards 575 
 
 constitutional law; decision on compensation act 650 
 
 contracts presumed to be subject to act 569 
 
 death; compensation for 218 
 
 definitions not otherwise classified 337 
 
 dependents, 326 
 
 dependents; definition of 338 
 
 election of remedies 19 
 
 election to come under act 145 
 
 employe; definition of 337 
 
 employer; definition of 337 
 
 exempting employers from operation of act 191 
 
 expenses of administering law 580 
 
 fees and costs 552 
 
 funeral expenses 203 
 
 garnishment of award 343 
 
 insurance companies; enforcement of claims against 563 
 
 limitations 378 
 
 Massachusetts Employes' Insurance Association; creation and 
 
 government of 500 
 
 medical attention 198 
 
 modifying awards 488 
 
 notice of injury 366 
 
 partial or temporary disability; compensation for 282 
 
 penalties 532 
 
 permanent disability; definition of 303 
 
 permanent partial disability; definition of 309 
 
 physical examination 390 
 
 preferences of claims 557 
 
 procedure 416 
 
 repealing act 585 
 
 reports of injuries and awards 539 
 
 serious and willful misconduct; effect of 146 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 183 
 
 subrogation 354 
 
 subscriber; definition of 338
 
 INDEX 1145 
 
 [References are to Pages] 
 
 MASSACHUSETTS Continued 
 
 temporary partial disability; definition of 312 
 
 temporary total disability ; definition of 306 
 
 text of Compensation Act 935 
 
 total or permanent disability; compensation for 261 
 
 to whom act applies 145 
 
 when compensation begins 194 
 
 when law becomes effective 548 
 
 MEALTIME; 
 
 bite of cat on master's premises; accident arising out of and in 
 the course of the employment 102 
 
 injuries suffered during; arising out of and in the course of em- 
 ployment 89 
 
 law writer injured at lunch hour 119 
 
 MEDICAL ATTENTION 197 
 
 California 197 
 
 Illinois 197 
 
 Kansas 198 
 
 Massachusetts 198 
 
 Michigan 199 
 
 Nevada 199 
 
 New Hampshire 199 
 
 New Jersey 199 
 
 Ohio 200 
 
 Rhode Island 200 
 
 Washington 200 
 
 Wisconsin 200 
 
 See Physical examination. 
 
 MEDICAL REFEREE; 
 
 cause of death submitted to 384 
 
 report not conclusive on arbitrator 386 
 
 MEDICAL TREATMENT; 
 
 condition due to defective treatment; accidental bodily injury 51 
 
 MENTAL FRIGHT; 
 
 disability caused by 239 
 
 MENTAL SHOCK OR FRIGHT; 
 
 accidental bodily injury 29
 
 1146 INDEX 
 
 [References are to Pages] 
 
 MESSENGER; 
 
 special policeman and messenger going to and from the place of 
 the employment; accident arising out of and in the course 
 
 of the employment 103 
 
 MICHIGAN; 
 
 abolition of defenses 22 
 
 alternative plan 505 
 
 appeal 458 
 
 assignment of award 343 
 
 attorney's fees 347 
 
 casual employe 148 
 
 commutation of award 298 
 
 compromising claims and awards 575 
 
 contracts presumed to be subject to act 569 
 
 death; compensation for 219 
 
 definition not otherwise classified 339 
 
 dependents 327 
 
 election of remedies 23 
 
 election to come under act 147 
 
 exempting employers from operation of act 191 
 
 expenses of administering law 580 
 
 fees and costs 553 
 
 funeral expenses 203 
 
 garnishment of award 343 
 
 insurance companies; enforcement of claims against 563 
 
 insurance under state supervision 508 
 
 interstate commerce 150 
 
 limitations 379 
 
 medical attention '. 199 
 
 minor; election by 149 
 
 modifying awards 489 
 
 notice of injury 368 
 
 partial or temporary disability; compensation for 283 
 
 penalties 532 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 391 
 
 preferences of claims 557 
 
 procedure 416 
 
 repealing act 586 
 
 reports of injuries and awards 540 
 
 specific injuries; compensation for 283
 
 INDEX 1147 
 
 [References are to Pages] 
 
 MICHIGAN Continued 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 184 
 
 subrogation 354 
 
 temporary partial disability; definition of 312 
 
 temporary total disability; definition of 307 
 
 text of Compensation Act 955 
 
 total or permanent disability; compensation for 262 
 
 to whom act applies 146 
 
 when compensation begins 194 
 
 when law becomes effective 548 
 
 willful misconduct; effect of 149 
 
 MINE; 
 
 definition of; Kansas 336 
 
 MINORS; 
 
 benefits under the act; Washington 168 
 
 MISCONDUCT; 
 
 dismissal of workman suffering from partial permanent dis- 
 ability 238 
 
 See Serious and willful misconduct. 
 
 MODIFYING AWARDS; 
 
 allowance for expenses when work furnished away from home . . 484 
 
 application for review; terms of binding on applicant 471 
 
 apportioning loss between employe and employer 484 
 
 California 487 
 
 circumstances must have changed to justify review 469 
 
 diminishing payments ; burden of proof 484 
 
 disability due to brooding over injury 481 
 
 disability from disease following injury 479 
 
 eyesight; rolling-mill hand able to work with glasses when vi- 
 sion impaired 480 
 
 failure of workman to get or attempt to get light work 478 
 
 inability to get employment due to slackness of work 482 
 
 idleness 'and softened muscles causing disability 480 
 
 Illinois 487 
 
 inability to obtain light work 476 
 
 increasing age as affecting disability 474 
 
 infant earning as much after as he did before accident 482
 
 1148 INDEX 
 
 MODIFYING AWARDS Continued 
 
 Kansas 487 
 
 keeping proceeding alive by payment of nominal sum 486 
 
 Massachusetts 488 
 
 Michigan 489 
 
 modification dating from a period earlier than the date of the 
 
 application 471 
 
 Nevada 489 
 
 New Hampshire 489 
 
 New Jersey 490 
 
 new medical evidence on review to show changed circumstances 471 
 
 offering suitable employment 477 
 
 Ohio 490 
 
 otherwise than by appeal 468 
 
 probable earnings of infant in different grades -i52 
 
 profits of business enterprise as affecting right to reduce com- 
 pensation 483 
 
 question of recovery from injury is one of fact 473 
 
 recovering overpayments of compensation 486 
 
 reducing payments after offer and refusal of light work 477 
 
 refusal to submit to surgical operation 474 
 
 refusing payments by reason of ability to do light work 475 
 
 res adjudicata; doctrine of; how applied 469 
 
 Rhode Island 490 
 
 terminating compensation payments 471 
 
 Washington 491 
 
 Wisconsin 492 
 
 workman permanently injured but suffering increased dis- 
 ability from disease 479 
 
 MOTHER; 
 
 as dependent of son 316 
 
 MOTHER AS DEPENDENT. See Dependents. 
 
 MURDER; 
 
 committed by robber; accidental bodily injury 49 
 
 MUTUAL INSURANCE COMPANIES; 
 
 Wisconsin 530 
 
 N 
 NEGLIGENCE; 
 
 effect on election of remedies; Kansas 141
 
 INDEX 1149 
 
 [References are to Pages] 
 
 NERVOUSNESS; 
 
 disability caused by 239 
 
 NEURASTHENIA; 
 
 incapacity caused by 239 
 
 NEVADA; 
 
 abolition of defenses 24 
 
 alternative plan 514 
 
 appeal 459 
 
 assignment of award 343 
 
 attorney's fees 347 
 
 commutation of award 298 
 
 compromising claims and awards 576 
 
 contracts presumed to be subject to act 569 
 
 death ; compensation for 220 
 
 definitions not otherwise classified 339 
 
 dependents 328 
 
 election of remedies 25 
 
 exempting employers from operation of act 191 
 
 expenses of administering law 581 
 
 fees and costs 553 
 
 funeral expenses 203 
 
 garnishment of award 343 
 
 insurance companies; enforcement of workmen's claim against 564 
 
 limitations 379 
 
 medical attention 199 
 
 modifying awards 489 
 
 notice of injury 369 
 
 partial or temporary disability; compensation for 287 
 
 penalties 532 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 391 
 
 preferences of claims 557 
 
 procedure 426 
 
 repealing act 586 
 
 reports of injuries and awards 541 
 
 safety statutes; violation of 151 
 
 subcontractor; liability of principal contractor for injuries to 
 
 workman of subcontractor 184 
 
 subrogation 355 
 
 temporary partial disability; definition of 313
 
 1150 INDEX 
 
 [References are to Pages] 
 
 NEVADA Continued 
 
 temporary total disability; definition of 307 
 
 text of Compensation Act 989 
 
 total or permanent disability; compensation for 263 
 
 to whom act applies 150 
 
 when compensation begins 194 
 
 when law becomes effective 549 
 
 NEW HAMPSHIRE; 
 
 abolition of defenses 26 
 
 alternative plan 514 
 
 appeal 459 
 
 assignment of award 343 
 
 attorney's fees 347 
 
 commutation of award 299 
 
 compromising claims and awards 576 
 
 contracts presumed to be subject to act 569 
 
 death; compensation for 221 
 
 definitions not otherwise classified 339 
 
 dependents 328 
 
 election of remedies 26 
 
 election to come under act 155 
 
 exempting employers from operation of act 191 
 
 expenses of administering law 581 
 
 fees and costs 553 
 
 funeral expenses 203 
 
 garnishment of award 343 
 
 insurance companies; enforcement of workmen's claims against 564 
 
 intoxication 156 
 
 liability of principal contractor for injuries to workman of 
 
 subcontractor 185 
 
 limitations 380 
 
 medical attention 199 
 
 modifying awards 489 
 
 notice of injury 370 
 
 partial or temporary disability; compensation 287 
 
 penalties 533 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 392 
 
 preferences of claims 558 
 
 procedure 427 
 
 repealing act 586
 
 INDEX 1151 
 
 [References are to Pages] 
 
 NEW HAMPSHIRE Continued 
 
 reports of injuries and awards 541 
 
 safety statutes; violation of 154 
 
 serious and willful misconduct 156 
 
 subrogation 355 
 
 temporary partial disability; definition of 313 
 
 temporary total disability ; definition of 307 
 
 text of Compensation Act 998 
 
 total or permanent disability; compensation for 264 
 
 to whom act applies 153 
 
 when compensation begins 194 
 
 when law becomes effective 549 
 
 NEW JERSEY; 
 
 abolition of defenses 27 
 
 alternative plan 514 
 
 amputation; definition of 340 
 
 appeal 460 
 
 assignment of award 344 
 
 attorney's fees 348 
 
 commutation of award 299 
 
 compromising claims and awards 577 
 
 contracts presumed to be subject to act 569 
 
 death; compensation for 222 
 
 definitions not otherwise classified , 339 
 
 dependents 329 
 
 election of remedies 29 
 
 election to come under act 157 
 
 exempting employers from operation of act 191 
 
 expenses of administering law 581 
 
 fees and costs 554 
 
 funeral expenses 204 
 
 garnishment of award 344 
 
 insurance companies; enforcement of workmen's claims 
 
 against 564 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor 185 
 
 limitations 380 
 
 medical attention 199 
 
 modifying awards 490 
 
 notice of injury 371 
 
 partial or temporary compensation; compensation for 288 
 
 penalties 533
 
 1152 INDEX 
 
 [References are to Pages] 
 
 NEW JERSEY Continued 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 392 
 
 preferences of claims 558 
 
 procedure 428 
 
 repealing act 586 
 
 reports of injuries and awards 541 
 
 specific injuries; compensation for 288 
 
 subrogation 356 
 
 synonyms; under compensation act 340 
 
 temporary partial disability; definition of 313 
 
 temporary total disability; definition of 307 
 
 text of Compensation Act 1000 
 
 total or permanent disability ; compensation for 265 
 
 to whom act applies 156 
 
 when compensation begins 195 
 
 when law becomes effective 549 
 
 willful negligence; definition of 339 
 
 NEW TRIAL; 
 
 arbitrator cannot grant 408 
 
 NEW YORK; 
 
 constitutional decision 592 
 
 first compensation act passed in State of '. note, 39 
 
 NORWAY; 
 
 compensation act of xxviii 
 
 NOTICE OF CLAIM; 
 
 admission in answer that compensation has been paid 407 
 
 disability not caused until some time after accident 363 
 
 failure to give notice; lack of prejudice burden of proof 360 
 
 ignorance of law not a "mistake" excusing giving of notice . . 362 
 notice by one dependent does not enure to benefit of another. 359 
 prejudice; by failure of notice; omission of notice to insurance 
 
 company by employer 362 
 
 sufficiency of claim for compensation 359 
 
 when required ; how served 358 
 
 NOTICE OF INJURY; 
 
 California 363 
 
 Illinois. . . 364
 
 INDEX 1153 
 
 [References are to Pages] 
 
 NOTICE OF INJURY Continued 
 
 Kansas 365 
 
 Massachusetts 366 
 
 Michigan 368 
 
 Nevada 369 
 
 New Hampshire 370 
 
 New Jersey 371 
 
 Ohio 372 
 
 Rhode Island 373 
 
 sufficient excuse for failure to give notice 362 
 
 waiver of notice by paying compensation 363 
 
 Washington 374 
 
 Wisconsin 375 
 
 o 
 
 OBVIOUS DANGERS; 
 
 voluntarily assuming position of; serious and willful mis- 
 conduct 126 
 
 OCCASIONAL EMPLOYE; 
 
 domestic; when casual employe 122 
 
 OHIO; 
 
 abolition of defenses 30 
 
 alternative plan 514 
 
 appeal 460 
 
 assignment of award 344 
 
 attorney's fees, 348 
 
 commutation of award 299 
 
 compromising claims and awards 577 
 
 death; compensation for 224 
 
 constitutional law; decision on compensation act 764 
 
 contracts presumed to be subject to act 569 
 
 definitions not otherwise classified 340 
 
 dependents 329 
 
 election of remedies 31 
 
 election to come under act 159 
 
 exempting employers from operation of act 192 
 
 expenses of administering law 581 
 
 fees and costs 554 
 
 funeral expenses 204 
 
 garnishment of award 344 
 
 73
 
 1154 INDEX 
 
 [References are to Pages] 
 
 OHIO Continued 
 
 insurance companies; enforcement of claims against 564 
 
 insurance under state supervision 514 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor 186 
 
 limitations 380 
 
 medical attention 200 
 
 modifying awards 490 
 
 notice of injury 372 
 
 partial or temporary disability; compensation 290 
 
 penalties 533 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 393 
 
 preferences of claims 558 
 
 procedure 432 
 
 repealing act 588 
 
 reports of injuries and awards 542 
 
 subrogation 356 
 
 temporary partial disability; definition of 313 
 
 temporary total disability; definition of 307 
 
 text of Compensation Act 1021 
 
 total or permanent disability; compensation for 265 
 
 to whom act applies 159 
 
 when compensation begins 195 
 
 when law becomes effective 549 
 
 ORDERS; 
 
 disobedience of; serious and willful misconduct 128 
 
 OVEREXERTION; 
 
 accidental bodily injury 57 
 
 P 
 
 PARALYSIS; 
 
 accidental bodily injury ; 61 
 
 PARENTS; 
 
 as dependents of child 316 
 
 as dependents; see Dependents. 
 
 PARTIAL DEPENDENT; 
 
 amount due as compensation is a question of fact 209
 
 INDEX 1155 
 
 [References are to Pages] 
 
 PARTIAL OR TEMPORARY DISABILITY 274 
 
 compensation for; ability to obtain same wages after as before 
 
 accident in another class of work 276 
 
 compensation for; ability to do light work after accident; 
 
 exaggeration of injury 276 
 
 compensation for; California 281 
 
 compensation for; clumsiness due to injury as ground of in- 
 capacity 278 
 
 compensation for; convict not entitled to compensation 275 
 
 compensation for; deducting the hospital fees from compensa- 
 tion 279 
 
 compensation for; Illinois 281 
 
 compensation for; infant; probable earnings 277 
 
 compensation for; Kansas 281 
 
 compensation for; Massachusetts 282 
 
 compensation for; Michigan 283 
 
 compensation for; Nevada 287 
 
 compensation for; New Hampshire 287 
 
 compensation for; New Jersey 288 
 
 compensation for; Ohio 290 
 
 compensation for; pain and suffering not compensated 275 
 
 compensation for; Rhode Island 291 
 
 compensation for; unsuccessful efforts to obtain employment. 280 
 compensation for; vocational diseases; contracted partly in the 
 
 employment of two employers apportioning compensation . 280 
 compensation for; voluntary idleness of workman as tending 
 
 to prolong disability 279 
 
 compensation for; wages and compensation after accident need 
 
 not equal wages before injury 277 
 
 compensation for; wages and compensation in excess of wages 
 
 before accident 277 
 
 compensation for wages paid seaman under Shipping Act taken 
 
 into account in awarding compensation 278 
 
 compensation for; Washington 292 
 
 compensation for; Wisconsin 292 
 
 compensation for; workman receiving same wages after as 
 
 before injury 277 
 
 disability by disease accelerated by accident; basis of compen- 
 sation. . . 280 
 
 PARTNERS; 
 
 when are not workmen 118
 
 1156 INDEX 
 
 [References are to Pages] 
 
 PAUPER; 
 
 inmate of workhouse as dependent 321 
 
 PAY DAY; 
 
 going to a designated place to receive pay; accident arising 
 out of and in the course of the employment 108 
 
 returning to place of employment after employment ceased 
 to receive pay; accident arising out of and in the course of the 
 employment 108 
 
 returning to place of employment concerning dispute as to 
 wages; accident arising out of and in the course of the em- 
 ployment 108 
 
 PENALTIES; 
 
 California 531 
 
 failure to comply with the law 531 
 
 Illinois 531 
 
 Kansas ' 532 
 
 Massachusetts 532 
 
 Michigan 532 
 
 Nevada 532 
 
 New Hampshire 533 
 
 New Jersey 533 
 
 Ohio 533 
 
 Rhode Island 533 
 
 Washington 533 
 
 Wisconsin 534 
 
 PERMANENT DISABILITY; 
 
 compensation for 234 
 
 definition of; California 303 
 
 definition of; Illinois 303 
 
 definition of; Kansas 303 
 
 definition of; Massachusetts 303 
 
 definition of; Michigan 304 
 
 definition of; Nevada 304 
 
 definition of; New Hampshire 304 
 
 definition of; New Jersey 304 
 
 definition of; Ohio 304 
 
 definition of; Rhode Island 304 
 
 definition of; Washington 305 
 
 definition of; Wisconsin 305 
 
 See Total or permanent disability.
 
 INDEX 1157 
 
 [References are to Pages] 
 
 PERMANENT PARTIAL DISABILITY; 
 
 definition of; California 309 
 
 definition of; Illinois 309 
 
 definition of; Kansas 309 
 
 definition of; Massachusetts 309 
 
 definition of; Michigan 310 
 
 definition of; Nevada 310 
 
 definition of; New Hampshire 310 
 
 definition of; New Jersey 310 
 
 definition of; Ohio 310 
 
 definition of; Rhode Island 310 
 
 definition of; Washington 311 
 
 definition of; Wisconsin 311 
 
 PHYSICAL EXAMINATION; 
 
 by physician 383 
 
 California 386 
 
 cause of death submitted to medical referee. 384 
 
 demand that workman's attorney be present at medical 
 
 examination 383 
 
 Illinois 387 
 
 Kansas 388 
 
 Massachusetts 390 
 
 medical referee's report not conclusive on arbitrator 386 
 
 Michigan 391 
 
 Nevada 391 
 
 New Hampshire 392 
 
 New Jersey 392 
 
 Ohio 393 
 
 refusal of workman to undergo surgical operation 385 
 
 Rhode Island 393 
 
 unreasonable demand that workman's medical attendant be 
 
 present at examination 384 
 
 Washington '.' 394 
 
 Wisconsin 395 
 
 PHYSICIANS; 
 
 examination by 383 
 
 See Physical examination. 
 
 PIPE DROPPED FROM WAGON; 
 
 reaching therefor when injury occurred; accident arising out of 
 and in the course of the employment 106
 
 1158 INDEX 
 
 [References are to Pages] 
 
 PLEADINGS; 
 
 amending by arbitrator 399 
 
 PNEUMONIA; 
 
 inhaling gas from explosion in mine; accidental bodily injury . . 67 
 traumatic origin; accidental bodily injury '..... 61 
 
 POACHERS; 
 
 attack by; accidental bodily injury 49 
 
 POISONING; 
 
 blister on finger; poison on entering through; accidental 
 
 bodily injury 69 
 
 blood poison caused by tight boots; accidental bodily injury . 70 
 
 by gas; accidental bodily injury 64, 65, 67 
 
 enteritis from inhaling noxious gases; accidental bodily injury 66 
 germ getting into system through break in skin; accidental 
 
 bodily injury 68 
 
 hypodermic needle causing blood poison; accidental bodily 
 
 injury 69 
 
 lead poisoning; accidental bodily injury 67 
 
 POLICEMAN; 
 
 acting as fireman; when not workman 119 
 
 special; going to and from place of employment; accident 
 arising out of and in the course of the employment 103 
 
 POSTHUMOUS CHILDREN; 
 
 Washington 168 
 
 as dependent; see Dependents. 
 
 PRACTICE; 
 
 how law administered 396 
 
 See Procedure; Evidence 
 
 PREFERENCES OF CLAIMS 556 
 
 California 556 
 
 Illinois 556 
 
 Kansas 557 
 
 Massachusetts 557 
 
 Michigan 557 
 
 Nevada 557 
 
 New Hampshire 558
 
 INDEX 1159 
 
 [References are to Pages] 
 
 PREFERENCES OF CLAIMS Continued 
 
 New Jersey 558 
 
 Ohio 558 
 
 Rhode Island 558 
 
 Washington 559 
 
 Wisconsin 559 
 
 PRESUMPTIONS; 
 
 inferences from unexplained injuries 103 
 
 PROBABLE EARNINGS; 
 
 infant; basis of compensation : 277 
 
 PROCEDURE; 
 
 admission in answer that compensation has been paid amounts 
 
 to admission of claim made 407 
 
 agreement for compensation is a bar to arbitration proceedings 399 
 agreement to pay compensation is not a consent to arbitration 398 
 
 amendment of pleadings 399 
 
 amendment of pleadings by arbitrator 399 
 
 apportioning compensation among dependents 407 
 
 award to terminate at specified date in future 407 
 
 burden of proof as to serious and willful misconduct 403 
 
 burden of proving the injury was caused by accident is on the 
 
 workman 399 
 
 California 408 
 
 effect of agreement to pay compensation during incapacity . . 399 
 
 enforcing payment of award; body execution 407 
 
 evidence generally 403 
 
 finding on question of fact as to which there is evidence to 
 
 support 404 
 
 how law administered 396 
 
 Illinois 411 
 
 inferences in the absence of direct proof 400 
 
 Kansas 412 
 
 liberal rules as to procedure 397 
 
 Massachusetts , 416 
 
 Michigan 422 
 
 modifying awards; keeping proceeding alive by payment of 
 
 nominal sum 486 
 
 necessity of appointment of guardian ad litem when interest 
 
 of incompetent involved 397 
 
 Nevada . .426
 
 1160 INDEX 
 
 [References are to Pages] 
 
 PROCEDURE Continued 
 
 New Hampshire 427 
 
 New Jersey 428 
 
 new trial; arbitrator cannot grant 408 
 
 Ohio 432 
 
 Rhode Island 438 
 
 right of workman to take out letters of administration on estate 
 
 of deceased employer 397 
 
 specifying amount when making claim for compensation 397 
 
 sufficiency of finding of incapacity 404 
 
 suspensory award 406 
 
 Washington 442 
 
 Wisconsin 446 
 
 See Modifying awards. 
 
 PROFESSIONAL FOOTBALL PLAYER; 
 
 when he is a workman 119 
 
 Q 
 
 QUARRY; 
 
 definition of; Kansas 336 
 
 R 
 
 RAILROADS; 
 
 rebuilding station; ancillary work; accident arising out of and 
 in the course of the employment 107 
 
 refreshment room at station; employment in is not employ- 
 ment on railroad; accident arising out of and in the course 
 of the employment ' 107 
 
 RAILWAY; 
 
 definition of; Kansas 335 
 
 REFEREE; 
 
 medical; cause of death submitted to 384 
 
 medical ; report not conclusive on arbitrator 386 
 
 See Pleading; Procedure 
 
 REGULAR BUSINESS; 
 
 ancillary work to regular trade; rebuilding railroad station; 
 accident arising out of and in the course of the employ- 
 ment .107
 
 INDEX 1161 
 
 [References aie to Pages] 
 
 REGULAR BUSINESS Continued 
 
 employment in refreshment room at station not employment 
 on railroad; accident arising out of and in the course of the 
 
 employment 107 
 
 RELIEVING NATURE; 
 
 accident arising out of and in the course of the employment . . 90 
 
 REMAINING ON PROPERTY AFTER SUSPENSION FROM 
 WORK; 
 
 accident Arising out of and in the course of the employment . . 1 10 
 
 REPAIRING; 
 
 carpenter employed to make repairs; when casual employe". . . 122 
 
 casual employe; bricklayer employed to repair farm buildings 123 
 
 casual employe; workman repairing private residence 123 
 
 REPEALING ACT; 
 
 California 584 
 
 Illinois 584 
 
 Kansas 585 
 
 Massachusetts 585 
 
 Michigan 586 
 
 Nevada 586 
 
 New Hampshire 586 
 
 New Jersey 586 
 
 Ohio 588 
 
 Rhode Island 589 
 
 Washington 589 
 
 Wisconsin 591 
 
 REPORTS OF INJURIES AND AWARDS 535 
 
 California 535 
 
 Illinois. 538 
 
 Kansas 539 
 
 Massachusetts 539 
 
 Michigan. 540 
 
 Nevada 541 
 
 New Hampshire 541 
 
 New Jersey 541 
 
 Ohio 542 
 
 Rhode Island 545 
 
 Washington 546 
 
 Wisconsin. . . 546
 
 1162 INDEX 
 
 [References are to Pages] 
 
 RES ADJUDICATA; 
 
 estoppel by payment of compensation before death of right to 
 
 deny liability therefor after death 211 
 
 modifying awards; how far doctrine applies 469 
 
 RETURNING TO PLACE OF EMPLOYMENT TO GET 
 TOOLS; 
 
 accident arising out of and in the course of the employment. . 109 
 
 REVIEW OF AWARDS; see Modifying awards. 
 
 REVOLUTIONIST; 
 
 sailor on board ship in foreign port hit by stray bullet; acci- 
 dental bodily injury 50 
 
 RHODE ISLAND; 
 
 abolition of defenses 33 
 
 alternative plan 517 
 
 appeal 461 
 
 assignment of award 344 
 
 attorney's fees 348 
 
 average weekly wages 267 
 
 commutation of award 300 
 
 compromising claims and awards 577 
 
 contracts presumed to be subject to act 570 
 
 death; compensation for 225 
 
 definitions not otherwise classified 340 
 
 dependents 329 
 
 election to come under act 161 
 
 employe; definition of 340 
 
 employer; definition of 340 
 
 exempting employers from operation of act 192 
 
 expenses of administering law 582 
 
 fees and costs 554 
 
 funeral expenses 204 
 
 garnishment of award 344 
 
 insurance companies; enforcement of claims against 565 
 
 liability .of principal contractor for injuries to workman of sub- 
 contractor 186 
 
 limitations 381 
 
 medical attention 200 
 
 modifying awards 490 
 
 notice of injury 373
 
 INDEX 1163 
 
 [References are to Pages] 
 
 RHODE ISLAND Continued 
 
 partial or temporary disability; compensation for 291 
 
 penalties 533 
 
 permanent disability; definition of 304 
 
 permanent partial disability; definition of 310 
 
 physical examination 393 
 
 preferences of claims % 558 
 
 procedure 438 
 
 repealing act 589 
 
 reports of injuries and awards 545 
 
 specific injuries; benefits for 266 
 
 subrogation 356 
 
 temporary partial disability; definition of 313 
 
 temporary total disability; definition of 307 
 
 text of Compensation Act 1033 
 
 total or permanent disability ; compensation for 266 
 
 to whom act applies 161 
 
 when compensation begins 195 
 
 when law becomes effective 549 
 
 willful injury; effect 164 
 
 RULES; 
 
 disobedience of; serious and willful misconduct 128 
 
 RUPTURE; 
 
 accidental bodily injury 48, 55 
 
 s 
 
 SAFETY GUARD; 
 
 failure to use; effect; Kansas 141 
 
 SAFETY REGULATIONS; 
 
 failure to obey; penalty; Illinois 139 
 
 SAFETY STATUTES; 
 
 violation of; effect; Nevada 151 
 
 violation of; effect; New Hampshire 154 
 
 SALESMAN; 
 
 using bicycle; injured in street; accident arising out of and in 
 
 the course of the employment , 106
 
 1164 INDEX 
 
 [References are to Pages] 
 
 SAVING LIFE OF FELLOW WORKMAN; 
 
 accident arising out of and m the course of the employment . . 100 
 
 SEPTIC POISONING; 
 
 opening old wound by strain; accidental bodily injury 68 
 
 SERIOUS AND WILLFUL MISCONDUCT 123 
 
 age of infant; misrepresentation as to 128 
 
 burden of proof 403 
 
 courting obvious dangers 126 
 
 "deliberate intention" to cause injury; Illinois 140 
 
 determined from nature of conduct not consequences 125 
 
 disobedience of orders and rules 128 
 
 drunkenness 127 
 
 effect of; Massachusetts 146 
 
 New Hampshire 156 
 
 proof of negligence not sufficient 126 
 
 question of fact, not law 126 
 
 right to dismiss as test of 126 
 
 See Willful injury. 
 
 SETTLEMENT; 
 
 determining on appeal adequacy of lump sum paid under 
 
 agreement 453 
 
 See Compromising claims; Commutation of awards. 
 
 SHARE WORKERS; 
 
 when entitled to compensation 112 
 
 when entitled to compensation; taxi-cab drivers 115 
 
 SPECIFIC INJURIES; 
 
 compensation for; Michigan 283 
 
 compensation for; New Jersey 288 
 
 compensation for; Rhode Island 266 
 
 SPRAINS; 
 
 accidental bodily injury 56 
 
 STATE INSURANCE; 
 
 German plan is not xix 
 
 See Washington; Ohio; Massachusetts.
 
 INDEX 1165 
 
 [References are to Pages] 
 
 STONE THROWN FROM BRIDGE BY BOY HITTING EN- 
 GINE DRIVER; 
 
 accident arising out of and in the course of the employment . . 101 
 
 STRAIN; 
 
 opening old wound; septic poisoning; accidental bodily injury 68 
 accidental bodily injury ; 56 
 
 STRIKERS; 
 
 attack by; accidental bodily injury 49 
 
 SUBCONTRACTOR; 
 
 liability of principal contractor for injuries of subcontractor. . 176 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor 186 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; California 181 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Illinois 181 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Kansas 182 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Massachusetts 183 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Michigan 184 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Nevada 184 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; New Hampshire 185 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; New Jersey 185 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Ohio 186 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Washington 186 
 
 liability of principal contractor for injuries to workman of sub- 
 contractor; Wisconsin 187 
 
 subrogation by and against 350 
 
 SUBROGATION; 
 
 against subcontractor 350 
 
 by and against employers, insurance companies and others. . 350 
 California 352
 
 1166 INDEX 
 
 [References are to Pages] 
 
 SUBROGATION Continued 
 
 Illinois 352 
 
 Kansas 353 
 
 Massachusetts 354 
 
 Michigan 354 
 
 Nevada 355 
 
 New Hampshire 355 
 
 New Jersey 356 
 
 Ohio 356 
 
 Rhode Island 356 
 
 Washington 357 
 
 Wisconsin 357 
 
 SUBSCRIBER; 
 
 definition of; Massachusetts 338 
 
 SUFFOCATION IN BURNING HOUSE; 
 
 accident arising out of and in the course of the employment . . 103 
 
 SUICIDE; 
 
 committed while insane from loss of eyesight 207 
 
 SUNSTROKE; 
 
 accidental bodily injury 53 
 
 SURGICAL OPERATION; 
 
 anaesthetic administered for purpose of operation; accidental 
 
 bodily injury 67 
 
 modifying award when workman refused to submit to surgical 
 
 operation 474 
 
 refusal of workman to undergo 385 
 
 refusal to undergo; total or permanent disability 238 
 
 SUSPENSION FROM WORK; 
 
 remaining on the employer's property thereafter; accident 
 arising out of and in the course of the employment 110 
 
 SUSPENSORY AWARD 406 
 
 SWEDEN; 
 
 compensation act xxviii
 
 INDEX 1167 
 
 [References are to Pages] 
 
 SYNCOPE; 
 
 accidental bodily injury 60 
 
 SYNONYMS UNDER COMPENSATION ACT; 
 
 New Jersey 340 
 
 T 
 
 TEMPORARY DISABILITY 274 
 
 See Partial or temporary disability. 
 
 TEMPORARY PARTIAL DISABILITY; 
 
 definition of; California 312 
 
 definition of; Illinois 312 
 
 definition of; Kansas 312 
 
 definition of; Massachusetts 312 
 
 definition of; Michigan 312 
 
 definition of; Nevada 313 
 
 definition of; New Hampshire 313 
 
 definition of; New Jersey 313 
 
 definition of; Ohio 313 
 
 definition of; Rhode Island 313 
 
 definition of; Washington 313 
 
 definition of; Wisconsin 313 
 
 TEMPORARY TOTAL DISABILITY; 
 
 definition of; California 306 
 
 definition of; Illinois 306 
 
 definition of; Kansas 306 
 
 definition of; Massachusetts 306 
 
 definition of; Michigan 307 
 
 definition of; Nevada 307 
 
 definition of; New Hampshire 307 
 
 definition of; New Jersey 307 
 
 definition of; Ohio 307 
 
 definition of; Rhode Island 307 
 
 definition of; Washington 308 
 
 definition of; Wisconsin 308 
 
 TEXTS OF COMPENSATION ACTS 852 
 
 TIME WITHIN WHICH NO COMPENSATION IS ALLOWED 
 
 EXCEPT MEDICAL AID 193 
 
 See When compensation begins.
 
 1168 INDEX 
 
 [References are to Pages] 
 
 TOOLS; 
 
 returning to place of employment to get; accident arising out of 
 and in course of employment . . . , 109 
 
 TOTAL OR PARTIAL DISABILITY; 
 
 Compensation for; reduced earnings owing to general fall in 
 
 wages 276 
 
 compensation for 234 
 
 compensation for; California 253 
 
 compensation for; Illinois 256 
 
 compensation for; Massachusetts 261 
 
 compensation for; Michigan 262 
 
 compensation for; Nevada 263 
 
 compensation for; New Hampshire . . , 264 
 
 compensation for; New Jersey 265 
 
 compensation for; Ohio 265 
 
 compensation for; Rhode Island 266 
 
 compensation for; Washington 269 
 
 compensation for; Wisconsin 272 
 
 complete blindness caused to eye of which sight had been par- 
 tially destroyed 237 
 
 dismissal for misconduct of workman suffering from partial 
 
 permanent disability 238 
 
 loss of eye 236 
 
 nervousness causing incapacity to work 239 
 
 refusal of former employer to supply work to injured employe 235 
 
 refusal to undergo surgical operation 238 
 
 removal of eye already blind 237 
 
 total incapacity to do regular work 235 
 
 TO WHOM ACT APPLIES 39 
 
 acceptance of compensation principle as to part only of em- 
 ployes 42 
 
 accidental bodily injury; definition of 47 
 
 accident occurring without the State of the residence of the 
 employer and employe; commercial travelers injured on 
 
 road 105 
 
 accidents happening without the State of the residence of the 
 
 employer or the workman 44 
 
 agricultural worker 121 
 
 California 132 
 
 casual employes 121
 
 INDEX 1169 
 
 [References are to Pages] 
 
 TO WHOM ACT APPLIES Continued 
 
 casual employe; Illinois 140 
 
 Illinois 136 
 
 Kansas 141 
 
 Massachusetts 145 
 
 Michigan 146 
 
 Nevada 150 
 
 New Hampshire 153 
 
 New Jersey 156 
 
 Ohio. . : 159 
 
 Rhode Island 161 
 
 serious and willful misconduct; workmen guilty of 123 
 
 Washington 164 
 
 Wisconsin 170 
 
 workman; who is within meaning of act 110 
 
 See Accidental bodily injury; workman. 
 
 TRAUMATIC PNEUMONIA; 
 
 accidental bodily injury 61 
 
 u 
 
 UNAUTHORIZED ACTS; 
 
 doing acts for which workman not employed; accident arising 
 out of and in the course of the employment 94 
 
 UNEXPLAINED INJURIES; 
 
 drawing inferences therefrom 103 
 
 * V 
 
 VESSELS; 
 
 getting on and off; accidents arising out of and in the course of 
 
 the employment 82 
 
 sailor on board ship in foreign port shot by revolutionist; 
 
 accidental bodily injury 50 
 
 workmen; who are; share workers 112 
 
 VIOLATION OF LAW BY FELLOW WORKMAN CAUSING 
 INJURY; 
 
 arising out of and in course of employment 101 
 
 74
 
 1170 INDEX 
 
 [References are to Pages] 
 
 w 
 
 WAGES; 
 
 actual earnings not usual wages paid in that employment. . . . 250 
 
 average weekly 242 
 
 how computed 254 
 
 See Average weekly wages. 
 
 WAIVER; 
 
 notice of injury; payment of compensation 363 
 
 WASHINGTON; 
 
 abolition of defenses 34 
 
 appeal 464 
 
 assignment of award 344 
 
 attorney's fees 349 
 
 commutation of award 301 
 
 compromising claims and awards 577 
 
 constitutional law; decision on compensation act 703 
 
 contracts presumed to be subject to act 570 
 
 death; compensation for 227 
 
 definitions not otherwise classified 341 
 
 dependents 330 
 
 dependents; who are 167 
 
 election of remedies , 35 
 
 election to come under act 170 
 
 exempting employers from operation of act; Washington .... 192 
 
 expenses of administering law 583 
 
 fees and costs 554 
 
 funeral expenses ' 204 
 
 garnishment of award 344 
 
 insurance companies; enforcement of claims "against 565 
 
 insurance under state supervision 518 
 
 intentional injuries 168 
 
 interstate commerce 169 
 
 liability of principal contractor for injuries to workman of 
 
 subcontractor 186 
 
 limitations 381 
 
 medical attention 200 
 
 minors; benefits under the act 168 
 
 modifying awards 491 
 
 notice of injury 374 
 
 partial or temporary disability; compensation for 292
 
 INDEX 1171 
 
 [References are to Pages] 
 
 WASHINGTON Continued 
 
 penalties 533 
 
 permanent disability; definition of 305 
 
 permanent total disability; definition of 311 
 
 physical examination 394 
 
 preferences of claims 559 
 
 procedure 442 
 
 repealing act 589 
 
 reports of injuries and awards 546 
 
 subrogation 357 
 
 temporary partial disability; definition of 313 
 
 temporary total disability; definition of 308 
 
 text of compensation act 1058 
 
 total or permanent disability ; compensation for 269 
 
 to whom act applies 164 
 
 when compensation begins 196 
 
 when law becomes effective 549 
 
 WHEN ACT TAKES EFFECT; 
 
 workman injured before but dies after act takes effect Ill 
 
 See When law becomes effective. 
 
 WHEN COMPENSATION BEGINS 193 
 
 California 193 
 
 Illinois 193 
 
 Kansas 193 
 
 Massachusetts 194 
 
 Michigan 194 
 
 Nevada 194 
 
 New Hampshire 194 
 
 New Jersey 195 
 
 Ohio 195 
 
 Rhode Island 195 
 
 Washington 196 
 
 Wisconsin 196 
 
 WHEN LAW BECOMES EFFECTIVE 547 
 
 California ; 547 
 
 Illinois 547 
 
 Kansas 547 
 
 Massachusetts 548 
 
 Michigan 548
 
 1172 INDEX 
 
 [References are to Pages] 
 
 WHEN LAW BECOMES EFFECTIVE Continued 
 
 Nevada 549 
 
 New Hampshire 549 
 
 New Jersey 549 
 
 Ohio 549 
 
 Rhode Island 549 
 
 Washington 549 
 
 Wisconsin 550 
 
 WHITEWASHER; 
 
 when casual employe 122 
 
 WHO ARE DEPENDENTS 314 
 
 WHO IS AGRICULTURAL WORKER 121 
 
 WHO IS CASUAL EMPLOYE 121 
 
 bricklayer employed to repair farm building 123 
 
 carpenter employed to do repairs 122 
 
 domestic employed occasionally 122 
 
 laborer employed to do whitewashing 122 
 
 repairing private residence 123 
 
 WHO IS WORKMAN; 
 
 charitable organization; employe of 120 
 
 chemist 119 
 
 independent contractor 117 
 
 law writer 119 
 
 manager 119 
 
 member of employer's family 112 
 
 partners 118 
 
 policeman acting as fireman 119 
 
 professional football player 119 
 
 share workers on vessels 112 
 
 taxi-cab drivers who share in proceeds 115 
 
 unauthorized employment by agent of employer Ill 
 
 within meaning of act 110 
 
 See Workman. 
 
 WILLFUL INJURY; 
 
 effect; Rhode Island 164
 
 INDEX 1173 
 
 . i _ 
 
 [References are to Pages] 
 
 WILLFUL MISCONDUCT; 
 
 burden of proof 403 
 
 effect of; Michigan 149 
 
 See Serious and willful misconduct; willful injury; willful mis- 
 conduct. 
 
 WILLFUL NEGLIGENCE; 
 
 definition of; New Jersey 339 
 
 WINDOW CLEANER; 
 
 casual employe 121 
 
 WISCONSIN; 
 
 abolition of defenses 36 
 
 alternative plan 530 
 
 appeal 466 
 
 assignment of award 345 
 
 attorney's fees 349 
 
 casual employe 173 
 
 commutation of award 302 
 
 compromising claims and awards. . . 578 
 
 constitutional law; decision on compensation act 656 
 
 contracts presumed to be subject to act 570 
 
 death; compensation for 229 
 
 decision of Industrial Commission as to right to accept com- 
 pensation principle as to part of employes only 43 
 
 definitions not otherwise classified 341 
 
 dependents 331 
 
 election of remedies 38 
 
 election to come under act 172 
 
 employe; definition of 341 
 
 exempting employers from operation of act 192 
 
 expenses of administering law 583 
 
 fees and costs 555 
 
 funeral expenses 205 
 
 garnishment of award 345 
 
 insurance companies; enforcement of claims against 565 
 
 liability of principal contractor for injuries to workman of 
 
 subcontractor 187 
 
 limitations 382 
 
 medical attention 200 
 
 modifying awards 492
 
 1174 INDEX 
 
 [References are to Pages] 
 
 WISCONSIN Continued 
 
 mutual insurance companies 530 
 
 notice of injury 375 
 
 partial or temporary disability; compensation for 292 
 
 penalties 534 
 
 permanent disability; definition of 305 
 
 permanent partial disability; definition of 311 
 
 physical examination 395 
 
 preferences of claims 559 
 
 procedure 446 
 
 repealing act 591 
 
 reports of injuries and awards 546 
 
 subrogation 357 
 
 temporary partial disability; definition of 313 
 
 temporary total disability; definition of 308 
 
 text of Compensation Act 1091 
 
 total or permanent disability; compensation for 272 
 
 to whom act applies 172 
 
 when compensation begins 196 
 
 when law becomes effective 550 
 
 WORKMAN; 
 
 charitable organization, employe of 120 
 
 definition of; Kansas 337 
 
 injured before act takes effect but dies after statute becomes 
 
 effective Ill 
 
 who is; chemist 119 
 
 who is; convict not entitled to compensation 275 
 
 who is; independent contractor 117 
 
 who is; law writer 119 
 
 who is; manager is not 1 19 
 
 who is; member of employer's family 112 
 
 who is; partners 118 
 
 who is; policeman acting as fireman 119 
 
 who is; professional football player 119 
 
 who is; share workers on vessels 112 
 
 who is; taxi-cab drivers who share in proceeds 115 
 
 who is; unauthorized employment by agent of employer Ill 
 
 who is; within meaning of act 110 
 
 See Who is workman.
 
 Universi 
 
 Jromwhichitwas borrowed ^ 
 
 LAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES
 
 A 000 681 539 3