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the payments might be withheld from the wages of the employees
after notice. The resulting fund was to be administered by
the insurance commissioner of the state, only cases of accidental
death being provided for by the payment of a uniform sum.
The law contained a provision that contributors to the fund were

1 Mt. Vernon Woodberry Duck Co. v. Insurance Co., Ill Md. 561, 75 Atl.
105 ; Frank Unnewehr Co. v. Insurance Co., 176 Fed. 16, 99 CCA. 490.
» R.S., ch. 73, sees. 309, ei seq.
» Acts 1903, No. 40. * Acts 1902, ch. 139.



LIABILITY OF EMPLOYERS FOR INJURIES 185

to be exempt from all other forms of liability, thus depriving the
employee of his right of action for damages either at common
law or under the statutes of the state ; and on this ground the
law was held to be unconstitutional.^

A later law of the same state ^ undertakes to provide a co-
operative insurance plan for coal and clay miners in certain
counties of the state. Employers and employees are to make
equal contributions to a fund which is to be collected and held
by the treasurers of the counties. Administration devolves on
the county commissioners. Fixed amounts are named for
compensation in cases of death, of maiming of various described
kinds, for injuries not resulting in maiming, and for medical
and burial expenses. Suits for damages may be brought, but
doing so bars compensation rights, and, conversely, the accept-
ance of compensation bars the right to sue. A somewhat similar
law has been enacted by the legislature of Montana,' applicable
to workmen, laborers, and employees in and around coal mines
and coal washers, excepting office employees, superintendents,
and general managers. Insurance under this law is mandatory,
the funds to be provided by deductions from the wages of all
employees coming within its provisions, and by fixed payments
by the employers based on the amount of coal mined per month.
The fund is to be administered by the state treasurer. Injured
employees or their representatives may sue to recover damages
independently of the provisions of the act, but the commence-
ment of a suit of this nature will operate as a forfeiture of the
right to benefits under the act.

' Franklin v. United Railway & Electric Co., Ct. of Common Pleas of Balti-
more, opinion filed Apr. 27, 1904.

» Acta 1910, oh. 153 (p. 484). • Acta 1909, ch. 67.



186 LAW OP THE EMPLOYMENT OF LABOR

Of broader scope, covering in fact the principal lines of in-
dustrial employment, is the workmen's insurance law of Wash-
ington ^ which requires all employers in designated industries,
classed as "extra-hazardous," to pay into a state accident fund
certain amounts as premiums. These premiums are based on
the nature of the employment and the number of workmen
therein, and constitute a fund from which payments are to be
made to workmen suffering from injury caused by accident
occurring in the course of employment. Employers in other
industries than those designated may elect to adopt the pro-
visions of the insurance law, whereupon they are relieved from
other liability. The legislatures of Massachusetts ^ and Ohio'
have enacted laws of similar general import with that of Wash-
ington, though not compulsory, and applicable to all classes of
employers who accept their provisions. In Ohio, the classifica-
tion of risks and the fixing of premium rates are committed
to a state liability board, which is charged with the administra-
tion of the law generally, while in Massachusetts a state in-
dustrial accident board administers the law. While employers
may exercise their choice in accepting the provisions of the stat-
ute, if they fail to do so, they are liable for damages resulting
from injuries to their workmen, and cannot offer as defenses
either assumption of risks, fellow-service, or contributory neg-
ligence. The Massachusetts act was pronounced constitu-
tional in an advisory opinion of the supreme court of the
state,* in which were considered both the abrogation of the
common law defenses and the adoption of the voluntary in-
surance scheme as a substitute for liability.

» Acts 1911, ch. 74. » Act approved July, 28, 1911.

» Act approved June 15, 1911. * Opinion delivered July 24, 1911.



CHAPTER VIII

workmen's compensation laws

Section 99. Federal Compensation Law of 1908. — The
British law of employers' liability, both as construed by the
courts of England in common law actions and as enacted in the
legislation of 1880, has been of large influence in directing the
course of action in this country, both legislative and judicial.
At the present time, the principles that control in the United
States are of comparatively small and diminishing importance
in Great Britain, on account of the adoption in that country in
1897 of a compensation act by virtue of which the injured em-
ployee secures, not a right of action for damages, but a grant
of compensation payable by the proprietor of the business in
which the employee was injured. This principle, generally
adopted by more than a score of the industrial countries of the
world, received recognition to a limited extent by an act of
Congress of May 30, 1908,^ which grants to "any person em-
ployed by the United States as an artisan or laborer in any of
its manufacturing establishments, arsenals, or navy yards, or
in the construction of river and harbor or fortification work or
in hazardous employment on construction work in the reclama-
tion of arid lands or in the management and control of the same,

> Acts 1907-1908, ch. 236 (36 Stat. 556).
187



188 LAW OF THE EMPLOYMENT OF LABOR

or in hazardous employment under the Isthmian Canal Com-
mission," compensation for injuries received in the course of his
employment not due to his own negligence or misconduct. The
amount of compensation is the rate of pay that would have been
received by the employee if he had continued to be employed,
this point being determined altogether by the employing office.
This provision of the law gives the injured employee the benefit
of any increase affecting employees of his group and class during
the continuance of his compensation payments. Payments
continue during disability, but for a period hmited to one year
from the beginning of the disability caused by the injury. In
case the injury results in death, the widow, child or children
under sixteen years of age, or a dependent parent, are entitled
to compensation of the same amount as would have been pay-
able to the employee if he had survived. No compensation is
provided unless the injuries cause disability for more than fifteen
days. Claims must be filed within a "reasonable time," the
statute limiting the time for filing death claims to not more than
ninety days after the death on account of which the claim is
made. Injured persons receiving compensation must be ex-
amined as often as directed by the Secretary of Commerce and
Labor, at least once every six months. In practice this exami-
nation is sometimes waived where the disability is obviously
permanent, but the effect of the provision is usually to limit ap-
provals of claims to six-month periods, subject to extension on
a proper showing at the expiration of the period. Where a
person is only partially incapacitated, and is able to do light
work, but not to resume the duties of his regular employment,
it has been held that the claim for compensation may be ap-
proved for the period of a year, even though there may be some



WORKMEN'S COMPENSATION LAWS 189

employment during the time, inasmuch as he is entitled to a
year's wages at the old rate, and is therefore entitled to the pro-
tection of such an approval.

The administration of the act is committed by the act itself
to the Secretary of Commerce and Labor, who is authorized to
make necessary rules for the award and payment of the benefits
accruing under its provisions. He is also authorized to deter-
mine all questions of negligence or misconduct, so that the law
is practically removed from the field of litigation, its construc-
tion by the Secretary on the points most frequently causing
dispute not being subject to judicial review. The doctrine of
assumed risks is absolutely eliminated, as is the defense of
fellow-service, the trade risk falling on the beneficiary of the
undertaking, where it would seem properly to belong in every
instance ; and no employee is held accountable for the mis-
conduct of a fellow, of whose actions he is often inevitably
ignorant, and over whom he has usually no power of control,
even indirectly.

The sundry civil bill for the year 1912 (act of March 4, 1911,
Public, No. 525), extended the benefits of this law to all em-
ployees under the Isthmian Canal Commission, eliminating the
question of hazardous employment, and provided that the ad-
ministration of the law in its application to such employees
should devolve upon the chairman of the Commission. It also
extended the time for filing death claims to one year.

In admini.stering the law, a liberal construction has been
adopted, following in general the definitions and rulings of the
common law as to the terms "artisan or laborer," "course of
employment," "negligence or misconduct," and "dependence,"
but relaxing in a measure the rule as to what should be con-



190 LAW OF THE EMPLOYMENT OF LABOR

sidered negligence of such nature as to bar a claim, with a view
to carrying out the evident beneficial intent of the act. Illegit-
imate children are held to be entitled to the benefits of the stat-
ute, as it is not one relating to inheritance, and the statute uses
the term "child or children " in an unqualified and presumably
in a popular sense, as offspring. Trade diseases, as lead poison-
ing, do not support a claim for compensation, since the idea of
the word "accident " is held to imply a more definite point of
time than would be the case where cumulative effects are the
results of causes operating through a long period. Still less can
compensation be allowed for cases of illness caused merely by
exposure during employment/ though an edema of the lungs
caused by inhaling smoke from a blast in a tunnel, and an ul-
cerated sore throat resulting from the inhalation of acid fumes
while repairing an acid tank, were held to be injuries entitling
to compensation ; so also of sunstroke ; and of the freezing of
a workman's feet while employed in an exposed place ; and of
the aggravation of a chronic appendicitis by a strain or blow,
leading to disability which had not existed prior to the accident
causing the injury ; and in a case of disability caused by a sprain
accompanied by a rupture of the synovial sac surrounding the
ligaments of the wrist, induced by repeated operations under
conditions causing unusual effort in the performance of work,
it was held that "within the language of the statute, an em-
ployee may be injured in the course of his employment without
having suffered a definite accident." ^ An error of judgment
or the display of ignorance in procuring or following medical
advice is not a bar to the receipt of compensation.

' 28 Opinions of the Attorney-General, p. 254.
' 27 Opinions of the Attorney-General, p. 346.



WORKMEN'S COMPENSATION LAWS 191

Presumptions are in favor of the claimant, as where injury
occurred in the performance of work under conditions not
usually attended by untoward circumstances, but which in the
particular case involved injury. A person with a preexisting
weakness suffering injury from an accident that would not
presumably injuriously affect a sound man is entitled to com-
pensation notwithstanding his predisposition, if the accident
was the actual proximate cause of the disability. This extends
to the case of a workman who is in a place of danger in the
course of his employment, and is affected by epilepsy, to which
he is subject, and is injured, the disease being nothing more than
a remote cause ; while the position of hazard that makes the
fall dangerous, as from a height, or into a fire, is a condition of
employment, and the injury is therefore one that was entitled
to compensation. An employee engaged as laborer does not
lose his status because of the fact that at the moment of the
accident causing his injury he is employed at other than strictly
laborer's work ; while a messenger or other employee may be
detailed to work of such nature as to bring him within the scope
of the act. Employees of contractors of the government are
not employees of the United States.*

The course of employment includes going upon ways or con-
veyances furnished or maintained for the purpose of going to
and from work. One injured by a blast at the place where he
was due to begin work within a few minutes was present in the
scope of his employment, as was one who was on his way home
by the usual route at the close of work and was injured at an-
other place than that of his own labor ; so also an emploj^o in-
jured by the negligent act of another, while the former was

» Following United States r. Driscoll. 96 U.S. 421.



192 LAW OF THE EMPLOYMENT OF LABOR

performing the required duty of "ringing in" at the time clock,
was entitled to compensation.

The payments being compensatory in their nature are not to
be regarded as gratuities; if therefore an injured employee
submits a claim but dies before it is passed upon, the compensa-
tion payable for the term of his disability may be paid to his
personal representatives, since it is a right which survives him,
and does not die with him as does a right to a gratuity.^ Sur-
viving beneficiaries must, of course, submit a separate claim for
the period subsequent to the death, terminating with the year
for which payments are provided.

The above construction follows in some measure the inter-
pretation put upon the British compensation act, where ap-
propriate ; and while the compensation afforded is often en-
tirely inadequate, as in cases of maiming, permanent disability,
and loss of life, by a liberal regard for the fair intendment of
the act, a very considerable measure of relief is furnished to
a class of employees who were otherwise practically without
redress.

The idea of compensation had already received recognition
in the case of members of crews of life-saving or lifeboat stations,
who, if disabled by wound or injury received or disease con-
tracted in the line of duty, may receive full pay during one year,
and, on approval by the Secretary of the Treasury, during a
part or all of a second year ; ^ also in the case of railway mail
clerks injured while on duty, who continue to receive pay during
one year if the disability lasts so long. The personal represen-
tatives of railway mail clerks killed while on duty, or dying

• XVI Decisions of the Comptroller of the Treasury, 477.
» Act of May 4, 1882, 22 Stat. 67.



WORKMEN'S COMPENSATION LAWS 193

within one year thereafter as a result of injury received while
on duty, receive the fixed sum of two thousand dollars.^

Section 100. State Statutes, — With the exception of the
cooperative insurance law of Maryland (sec. 98), the state of
Massachusetts was the first of the United States to enact leg-
islation looking toward the substitution of compensatory pay-
ments in lieu of actions for damages.^ The law provides for a
submission to the state board of concihation and arbitration of
such schemes or plans as may be proposed by employers as
substitutes for the system of liabihty existing at common
and statute law ; payments are to be based on a percentage of
the average earnings of the employees. When any scheme is
approved by the board, the employer may make contracts with
his employees for his release from liability at law by the pay-
ment of the proposed compensation. It is not permitted to an
employer to make the employee's assent to such a scheme
obligatory as a condition to securing employment. It is ob-
vious, however, that the employer is not obliged to either accept
or retain any employee ; and that while the employer would
not, under the circumstances, assign as a reason for the work-
man's nonemployment his unwillingness to enter into the con-
tract, it might in fact be the controlling reason, which the
employer is not at all obliged to disclose.^

While this state was the first to arrange by statutory enact-
ment for a scheme of compensation, the first laws embodying
and enacting such a scheme were passed by the legislature of

» Act of May 12, 1910, 36 Stat. 3G3. Prior to this date the aum of $1000 had
been paid ; see appropriation act. Act of April 21, 1902, 32 Stat. 115, and subse-
quent appropriation acts.

« Acta 1908, ch. 489.

» Adair v. United States, 208 U.S. 161. 28 Sup. Ct. 277.
o



194 LAW OF THE EMPLOYMENT OF LABOR

New York.^ The first statute amends the former liability law
of the state, chiefly by making any person exercising control or
command a vice-principal as to those under his direction, and
by making the employer liable for injuries to the employees of
a contractor where injury results from conditions within the
control of the original employer. Restrictions are also placed
on the use of the defenses of assumption of risks and contribu-
tory negligence. This statute then proceeds to enact a com-
pensation scheme, the acceptance of which is optional with
employers and employees, as an alternative to the rights and
liabilities existing at common law or provided in the state
liability law.^

» Acts 1910, chs. 352, 674.

* The compensation scheme involves the payment of death claims in an
amount equal to twelve hundred times the employee's daily earnings, where
dependents survive, and proportionately reduced amounts if there are only par-
tial dependents. If no dependents survive, medical and burial expenses in an
amount not exceeding one hundred dollars are to be paid. In cases of nonfatal
accidents resulting in total incapacity, one half the average weekly earnings are
to be paid during disability not exceeding eight years. For partial incapacity
the payment is to be equal to one half the difference between the earnings before
and after the injury. Payments shall in no case exceed ten dollars per week, and
medical examinations may be held from time to time at the employer's expense
to determine the continuance and degree of disability.

Employers and employees accepting the scheme are to signify the fact by
signing and filing an instrument to that effect with the same formalities as if
making a conveyance of real estate, the agreement to continue in force during the
continuance of the employment contract unless canceled by sixty days' notice
in writing by either party. The agreement relieves the employer from liability
under common or statute law unless the injury was due to his failure to obey an
order of the commissioner of labor as to provisions for safety or to his serious
and willful misconduct. The bringing of a suit cuts off all claim to compensation
under the plan, and no right accrues where the injury is due to the serious or
willful misconduct of the person injured. Questions arising under the compensa-
tion plan may be settled by agreement, by arbitration as provided by the code
of civil procedure, or by an action at law. The action at law is to be in the form



WORKMEN'S COMPENSATION LAWS 195

The acceptance of the provisions of the second law was
made obligatory where they applied. This statute involves
a consideration of the power of the legislature to enact a
law compulsorily shifting the burden of the risk of in-
dustrial accident from the employee to the industry itself,
and requiring fixed measures of relief or compensation
for resultant injuries to be administered by the employer with-
out reference to his personal fault or negligence. Where only
an optional or elective provision exists, both parties being free
to choose, it is a matter of agreement or contract and within the
power of the parties, unless this exercise of their rights is shown
to be contrary to public policy. A compulsory statute, how-
ever, must show proper justification for its enactment as a
matter of public welfare within the police power of the state.
Prior decisions tending to support such a law exist. Thus it has

of a suit on breach of contract, and the award, if in the claimant's favor, shall be
a lump sum covering arrears and prospective payments. No assignment or
attachment can afifect weekly payments due under the plan, nor will a claim for
an attorney's fee be enforceable unless the amount is approved in writing by a
justice of the supreme court or by the justice of the court in which the case was
tried. The payments rank as preferred claims against an employer's assets, the
same as unpaid wages for personal services. Railroads are exempted from the
operation of the compensation statute, and no injury causing disability of less
than two weeks' duration is to be considered.

The second act (ch. 674) provided a compulsory compensation scheme for
designated dangerous employments, i.e., the construction or demolition of bridges
or buildings where iron or steel framework is used, and the operation of elevators,
derricks, or hoists for the conveyance of materials in connection therewith ;
work on scaffolds twenty or more feet in height in the construction, alteration,
repair or painting of buildings or bridges; work involving danger from elec-
trically charged wires ; work involving the use of explosives as an instrumentality
of the industry ; railroad employments, including maintenance of way ; the
construction of tunnels and subways ; and all work carried on under compressed
air. The details as to compensation and administration are practically the same
as in the case of the elective statute.



196 LAW OF THE EMPLOYMENT OF LABOR

been held that legal liability may be charged even in the ab-
sence of fault, thus practically making the manager of a busi-
ness an insurer of the safety of his customers, as in the case
of a railroad company and persons transported by it.^ Stat-
utes are constitutional that modify or abrogate the defenses
of fellow-service, assumed risks, and contributory negligence.^
Such legislation may go so far as to give the employee a status
that is briefly described in some statutes as being the same as
if he had not been an employee.^

The validity of legislation adapted to the particular character
of the undertaking has already been noted,^ and the hazardous
nature of an employment is clearly recognized as warranting the
regulation of its working conditions by a measure of legislative
interference with the common law freedom of contract of the
employer and employee.^ It is clear, however, that a compen-
sation law cannot be said to address itself in any direct manner
to the question of the physical conditions of employment, and
that any indirect effect, as by stimulating employers to care in
order to lighten the probable burdens of a compensation pro-
vision, could not bring the law within the class of safety regu-
lations.

The first case to come before the courts under the statute in



1 Chicago, R. I. & P. R. Co. v. Zernecke, 59 Nebr. 689, 82 N.W. 26 ; same case,
183 U.S. 582, 22 Sup. Ct. 229 ; Chicago, B. & Q. R. Co. v. Wolfe, 187 U.S. 638, 23
Sup. Ct. 847.

' Howard ». Illinois C. R. Co., 207 U.S. 463, 28 Sup. Ct. 141 (dissenting opin-
ion, and cases cited) ; El Paso & N. E. R. Co. v. Gutierrez, 215 U.S. 87, 30 Sup.
Ct. 21 ; Ives v. South Buffalo R. Co., 201 N.Y. 271, 94 N.E. 431.

» Mass., Acts 1909, eh. 514, sec. 127 ; Me., Acts 1909, ch. 258.

« Sec. 90.

' Missouri P. R. Co. v. Mackey, 127 U.S. 205, 8 Sup. Ct. 1161 ; TuUis c. R. Co.,
175 U.S. 348, 20 Sup. Ct. 136 ; Holden v. Hardy, 169 U.S. 366, 18 Sup. Ct. 383.



WORKMEN'S COMPENSATION LAWS 197

question (the law providing compulsory compensation in cer-
tain dangerous employments), was one of injury to a railroad
employee without fault charged to either the injured employee
or the employer, but merely as a necessary risk of the emploj'-
ment. In the trial and appellate courts the act was held to be
constitutional, the court stating that the legislature thereby
undertook merely to shift the burden of the trade risk from the
employee to the employer, which was said to be within its
power. ^ On appeal to the court of appeals of the state, how-
ever, the law was declared unconstitutional. The cogency of
the economic and equitable reasons was recognized, but it was
held that under existing restrictions on legislative action, it was
impossible constitutionally to enforce a law of this nature,
charging the employer with liability for accidents resulting from



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