Wisconsin status of companies and employés not under the act. It was held that at the time of the accident both parties were subject to the provisions of the compensation act. An award was made of four times $504, which was admitted to be the annual wages of the employé. Torvalson v. Minneapolis, St. Paul and Sault Ste. Marie R. R. Co., Dec. 2, 1912. Under the Wisconsin Workmen's Compensation Act a railway company may elect to adopt the compensation principle as to all its employés including trainmen, as the exception of trainmen from the provisions of the first three sections of the act does not apply to succeeding sections. Minneapolis, St. Paul & S. S. M. Ry. Co. v. Industrial Commission of Wisconsin, 000 Wis. 000; 141 N. W. Rep. 1119. In a letter dated December 14th, 1912, addressed to the author, the Industrial Commission of Wisconsin said: 66 It is optional with every employer in the State of Wisconsin regardless of the number or class of employés, whether he shall elect to come under the Compensation Act or not. The Act covers farm laborers, domestic servants and, in fact, all employés after the employer files his notice in writing with this Commission electing to operate under the provisions of the law." In a letter dated December 23rd, 1912, addressed to the author, in relation to domestic servants, the Wisconsin Industrial Commission said: "The Commission has ruled that domestic servants are not to be considered employés under the Compensation Act unless the trade, business, profession or occupation of the employer is that of a housekeeper. If a housekeeper should elect to operate under the Compensation Act, then such servants as he or she should employ would be covered by the law. Ordinarily, domestics cannot be considered employés under the provisions of subdivision 2 of Section 2394-7 because they are not engaged in the usual course of the trade, business, profession or occupation of the employer." Wisconsin Employés of the State and all political subdivisions thereof are brought under the law by compulsion, except "any official of the State, or of any county, city, town, village, or school district therein." § 2394-7. The Attorney General has held that a deputy game warden is an official within the meaning of the foregoing section. The Wisconsin Industrial Commission has ruled that an "official" "is one who has to do with the making, administration, execution or interpretation of the laws." The applicant was a member of Company I, Second Infantry of the Wisconsin National Guard. While in the course of his duties during the annual encampment of his regiment on the State Military reservation, he sustained injuries which caused a hernia. In response to an inquiry as to whether the applicant could be considered an employé of the State, the Attorney General, in an opinion, held that the applicant was an employé of the State and that he was entitled to compensation. The Commission decided that an operation on the applicant would incapacitate him for six weeks and that compensation based on the minimum wage, considered in the law, should be paid by the State. The specific award was that the amount paid should be $205.37, as the cost of the operation, and hospital expenses and compensation should be paid at the rate of $5.06 a week for six weeks. Chester E. Hanson v. State of Wisconsin, Dec. Wisconsin Industrial Commission, Feb. 4, 1913. The applicant who was fifteen years of age injured his left hand on a circular saw in the manual training department of a high school. He was a student but was employed on a holiday by the principal under authorization of the school board. His wages were 14 cents per hour. The parties to the proceeding agreed to pay $1,000 as compensation, and the commission directed the payment of this sum without consideration of the extent of the disability. George J. Schmitz v. City of Appleton, Dec. Wis. Indus. Com. Sept. 30, 1912. CHAPTER IV MANNER OF ELECTING TO OPERATE UNDER, OR REJECTING, OR OF BRINGING EMPLOYERS AND EMPLOYÉS WITHIN, THE TERMS OF THE COMPENSATION STATUTES ARTICLE A-INTRODUCTION.. Page 207 1. CLASSIFICATION OF STATUTES. 207 2. ACCEPTANCE OF COMPENSATION PRINCIPLE AS TO PART ONLY OF EMPLOYÉS. 210 ARTICLE B-SPECIFIC PROVISIONS OF VARIOUS STATUTES...... 211 All of the statutes of the States of the Union may be classified as follows: 1. Compulsory acts. 2. Elective acts. (a) In which election to adopt compensation principle is presumed by failure to indicate to the con trary. Classification of statutes (b) In which the election must be indicated by some affirmative act. Thus far only a few of the States have adopted acts which are compulsory in form. Washington passed such an act and so far it has been sustained by the Supreme Court of that State as well as by the branches of the Federal Court sitting in that commonwealth, although Washington has not adopted a constitutional amendment authorizing a compulsory workmen's compensation act. In the States of Arizona, California, New York and Ohio compulsory acts have been passed under constitutional amendments empowering the Legislatures of those States to enact such statutes. Certain employers in the States enumerated, therefore, are brought under the compensation principle without any election on their part whatsoever. The limitations on the rights of the employés, as specified in the compensation acts, are not operative in some States, however, unless the employers take the affirmative steps which are required by the various statutes. Thus, in Ohio, West Virginia, Oregon and Washington employers must make payments to the State Insurance fund before they are relieved from liability for common-law damages in actions by their workmen. In Connecticut, Massachusetts, Michigan, New York and Texas certain methods of assuring compensation payments must be taken before the employer can limit his liability to the sums payable under the compensation acts of those States. The elective compensation laws doubtless were direct outgrowths of the decision of the New York Court of Appeals in the now famous case of Ives v. South Buffalo Ry. Co., 201 N. Y. 271; 1 N. C. C. A. 517. As it was held in that case that a compulsory workmen's compensation law was unconstitutional, New Jersey hit upon the plan of adopting an elective act. Other States rapidly followed the lead of New Jersey in this respect. The first act provided that both employers and employés should be presumed to have elected Classification of statutes to pay and to accept compensation, unless they took some affirmative action to indicate to the contrary. If they did not do what the statute required it was conclusively presumed that they had adopted the compensation principle, and their rights and liabilities were governed accordingly. So far this presumptive election principle has been sustained by the courts. Some doubt, however, was raised as to the constitutionality of the "conclusive presumption" feature of certain of the statutes. Some of the legislatures, to avoid this question, passed acts which require employers, at least, to take some affirmative action to indicate their election to adopt the compensation principle. Two excellent examples of such statutes are those of Massachusetts and Michigan. The constitutional question involved is fully discussed in paragraph 7, of Chapter I, ante, page 11. In the pages which follow are contained the provisions of the acts of the various States showing how employers and employés are brought within the compensation principle in any particular State. It should be borne in mind, however, that under all the elective laws the employers have the first election. Until they have indicated their intention to adopt or to refuse to adopt the compensation principle their employés have no election whatsoever. In the event, however, that the employers do not adopt the compensation principle, usually, a considerable advantage flows to the employés in giving them rights which they do not have under any other circumstances, in relation to actions at common law or under so-called employers' liability acts as distinguished from workmen's compensation statutes. The provisions of the statutes for each State should be carefully examined, as some requirements are rather technical. Unless the statute is somewhat closely followed there may be danger that an employer, who believes he has adopted the compensation principle, will find himself liable for damages to an unlimited amount in serious cases, with very little chance of making a successful defense. |