TABLE 9.-NUMBER OF EMPLOYEES WHO MAY BE BROUGHT UNDER COMPENSATION ACTS AND NUMBER ACTUALLY UNDER THE ACTS IN THE 31 ELECTIVE STATES. 1 Failure to insure supposed to be due to stringent insurance provisions. HOW ELECTION IS MADE. Under this head are indicated the methods required by the laws for their acceptance or rejection in the 31 States where the elective system is provided. In 21 States 79 the employer is presumed to accept the act in the absence of positive action rejecting it, while under the other 10 elective systems he must institute some action indicating his purpose to come under the law. In 7 of these States so he elects by filing acceptances with designated State authorities, while in 3 States 81 election is made either by insuring in authorized casualty companies or by subscribing to the State fund. In the 21 80 79 Alabama, Alaska, Colorado, Connecticut, Delaware, Indiana, Iowa, Kansas, Louisiana, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, Oregon, Pennsylvania, South Dakota, Tennessee, Vermont, Virginia, and Wisconsin. 80 Kentucky, Maine, Michigan, Montana, Nevada, New Hampshire, and Rhode Island. 81 Massachusetts, Texas, and West Virginia. States where the employer is presumed to accept the act the employee is subject to the same presumption in the absence of positive steps to reject, while in 9 of the 10 States where the employer must take positive action acceptance by the employee is presumed until the negative is shown; the other State, Kentucky, requires the employee to file written notice of acceptance with his employer. In the original Texas law no option was given the employee in case the employer elected, but this restriction was repealed in 1917. Such a provision invalidated the old Kentucky act, and the Texas provision was also questioned, but the Texas supreme court held the law constitutional on all points. The extent to which employers have accepted the compensation laws has already been discussed. In most States very few employees have rejected the acts. ABROGATION OF DEFENSES. Under the elective system, as provided in 31 States, acceptance of the act is induced by the withdrawal or modification of the three customary common-law defenses of assumed risk, fellow service, and contributory negligence in cases where the employer refuses to accept the act. Employers accepting the compensation act are generally exempt from damage suits, while those rejecting the act are relieved of the duty of paying compensation but are subject to actions at law, with the usual defenses abrogated. In cases where an employee rejects the compensation system and sues an employer who has accepted it the employer usually retains his three defenses. The defenses of assumed risk and fellow service are abrogated. in each of the 31 elective States without restriction. The defense of contributory negligence, however, is abrogated unqualifiedly only in 17 82 of the 31 States. In 13 States 83 this defense is modified to the extent that injuries caused by the employee's intoxication, willful act, or reckless indifference are not actionable. In 1 State 84 the defense remains, but the burden of proof is shifted to the employer. SUITS FOR DAMAGES. When both the employer and employee have accepted the compensation act the bringing of suits for damages under either the common or statute laws of liability is forbidden absolutely in 16 States.85 the other 29 States employees are permitted to sue upon certain con In 82 Connecticut, Delaware, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Missouri, New Mexico, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, and West Virginia. 83 Alabama, Alaska, Colorado, Iowa, Minnesota, Montana, Nebraska, Nevada, New Jersey, Oregon, Pennsylvania, Texas, and Wisconsin. 84 New Hampshire. 85 Alabama, Alaska, Colorado, Hawaii, Idaho, Kansas, Louisiana, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Vermont, Virginia, Wisconsin, and Wyoming. ditions, generally some neglect on the part of the employer. Table TABLE 10.-CONDITIONS UNDER WHICH SUITS FOR DAMAGES MAY BE BROUGHT New Jersey. Vermont. Michigan New Hamp- New York. Oklahoma.. Conditions under which they are permitted. After injury. Defense of contributory negligence alone remains. If employer fails to insure his risk. If employer fails to insure his risk. Defenses abrogated. If employer fails to insure his risk. If injury is due to deliberate intention of employer, illegal employment of minors, or failure to insure. If injury is due to deliberate intention of employer or failure to insure. If employer, insuring in State fund, is in default on insurance premiums. If employer, insuring in State fund, is in default on insurance premiums. In lieu of compensation, after injury. If employer fails to insure his risk. Defenses abrogated. If employer fails to insure his risk, or illegally employs minors. If injury is due to willful act of employer, violation of safety law, or if employer is in default on insurance premiums. Defenses abrogated. If employer fails to insure his risk. Defenses abrogated. If injury is due to willful act of employer, or if employer is in default on Porto Rico.... If injury is due to employer's willful or criminal negligence. South Dakota.. If employer fails to insure his risk. Tennessee.. If employer fails to insure his risk. If employer's willful or gross negligence causes death, or if employer charges part of insurance premium against employee.í If employer fails to insure his risk when injury is caused by employer's negligence (defenses abrogated); if injury causes death (defenses remain and employer's negligence must be proved); if injury is due to employer's willful misconduct. Washington... If injury is due to employer's deliberate intention.2 Wisconsin. 1 In addition to compensation. 2 Excess damages in addition to compensation. It will be noted that 9 States 86 permit suit if the injury was due to a willful act, willful misconduct, or gross negligence of the employer; 24 87 permit it in case the employer fails to insure his risk or is in default on insurance premiums; 1 88 if the employer has violated 86 Kentucky, Maryland, Ohio, Oregon, Porto Rico, Texas, Utah, Washington, and West Virginia, 87 California, Connecticut, Delaware, Illinois, Indiana, Iowa, Kentucky, Maryland, Michigan, Missouri, Montana, Nebraska, Nevada, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, and West Virginia. 88 Ohio. the safety laws; 2 89 if he has illegally employed minors; 190 if employer charges part of insurance premiums against his employees; and 1 91 if the injury causes death. In most of the above cases the injured employee has the option of either accepting compensation or suing for damages, but he may not do both. In Washington and West Virginia, however, where the injury is due to the employer's deliberate intention, the employee may bring suit for excess damages in addition to receiving compensation, while in Texas the employee may sue for damages in addition to compensation if the employer has charged part of the insurance premium against the employee. When employees accept a compensation act, they must do so before the injury, except in 2 States, where the law reserves the right to an injured employee to bring suit or accept compensation after the accident, and in both States the defense of contributory negligence alone remains available to the employer. Possibly this provision explains in part why only 19 employers have accepted the act in New Hampshire. There is little inducement for an employer to come under a compensation act if he is also to be subjected to damage suits. In Arizona the law is compulsory, and consequently employers have no option. The former Montana statute, which fixed upon the employer a double liability by compelling him to contribute to an insurance fund and leaving him still liable for damages, was declared unconstitutional by the court. The failure to enact a Federal compensation law for interstate railroad employees has been in part due to the unwillingness of the railroad brotherhoods to give up their right to sue for damages. If the compensation system is accepted by the employer but rejected by the employee, the defenses remain available to the former in 29 States, but in Alaska, Iowa, and Nevada the defense of assumed risk is abrogated if the employer has violated the safety laws and regulations; in Kansas all defenses are abrogated if the employer has been guilty of willful negligence; in Delaware damages can not be recovered if the injury is caused by the employee's willful intention to injure himself or another, intoxication, failure to use safeguards, violation of law, or reckless indifference to safety, while in West Virginia the employee surrenders his right of action if he remains in the service of his employer after the latter elects to come under the act. 89 Kentucky and North Dakota. 90 Texas. 91 Utah. 92 Arizona and New Hampshire. 93 Alabama, Alaska, Colorado, Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Oregon, Porto Rico, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Virginia, and Wisconsin. SPECIAL CONTRACTS. 94 In order to secure to the employee the benefits contemplated by the act, without loss by reason of ill-considered and inadequate settlements, the law usually provides that an employee can not waive his right to compensation benefits or otherwise contract with his employer for the purpose of modifying the latter's liability under the law. Such waivers are absolutely forbidden in 19 States, except that in 4 of these States 5 the employer and employees may enter into a hospital contract. In 19 States " the employer is permitted to establish and maintain substitute insurance schemes or benefit funds, the benefits of which must equal those provided in the compensation act. In 3 States 97 only existing substitute insurance schemes are permitted. The laws of 3 States 98 make no provision in this regard, except that in New Mexico employers and employees may enter into an agreement to maintain a hospital. If the employee makes any contribution to the fund or substitute system, he must receive additional benefits corresponding to the amount of his contribution. This, of course, does not apply in Oregon, where the law places a part of the burden of cost upon the employee. 99 In four States " employees, under certain conditions, are permitted to waive their compensation rights. In Kansas and Ohio blind employees only are permitted to waive such rights, while in Connecticut all physically defective employees are permitted to do so. In Alabama, however, not only are settlements allowed if in "substantial" conformity with the law, but the courts are authorized to approve settlement agreements calling for less than the statutory benefits if they are "in the interest of the employee." BURDEN OF COST. With the single exception of Oregon, the burden of cost for compensation is entirely on the employer. In this State employees are required to contribute one cent for each day or part of day worked, the contributions being deducted from their wages. Such contributions have ranged from 6 to 10 per cent of the total premiums contributed by the employers. The remainder of the burden is borne by the employer, except that the State pays a subsidy of one-seventh of the amount contributed by both employers and employees. For 94 Alaska, California, Colorado, Hawaii, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Washington, and Wyoming. 95 Colorado, Montana, Nevada, and Washington. 96 Alabama, Arizona, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri, Oklahoma, Rhode Island, South Dakota, Utah, Virginia, West Virginia, and Wisconsin 97 Maine, Michigan, and Nebraska. 98 New Hampshire, New Mexico, and Porto Rico. 99 Alabama, Connecticut, Kansas, and Ohio. |