"Elective" laws and constitutional question involved Court has reached the conclusion that "the only logical result of the recent authorities would seem to be that whatever was left of the defense of assumption of risk in master and servant cases for negligence has been done away with and that such a defense in such actions, whether brought at common law or under the statute, no longer exists." Rosasco v. Ideal Opening Die Co., 79 Misc. 507; 141 Supp. 23. In the last-mentioned case the Court points out that, of course, in all such cases, liability must primarily depend upon the negligence of the defendant. If the employer has not been guilty of negligence there is no liability. The defense of assumption of risk is by way of confession and avoidance and necessarily presupposes that the defendant has been guilty of negligence. The Court then adds: "The defense of assumption of risk, so called, depends usually upon an implied agreement; in other words, the agreement is established by evidence from which the intention of the parties is implied. Where the employé knew of and appreciated the risk or danger and entered upon and continued in the employment with such knowledge, or where the risk or danger was so manifestly apparent and obvious that if he exercised the care of a reasonable and prudent man he must have known it, and hence is assumed to have known it, the courts have held, as matter of law, that the employé had agreed to assume the risk of injury because in such cases, on such evidence, the Court would be bound to instruct the jury that they must find the fact that the employé had agreed to assume the risk, or, if they found otherwise, set the verdict aside." The Court then cites Johnston v. Fargo, 184 N. Y. 379, in which it was held that an express agreement in writing by the employé to waive or assume the risk of an injury due to the negligence of the employer was in violation of public policy and void. The Court then cites the case of Fitzwater v. Warren, 206 N. Y. 355, in which it was held that no other or different principle from that announced in Johnston v. Fargo could be applied in the case of an implied agreement. Brief review of the American laws thus far passed The Court then remarked that as the Court of Appeals had held that neither an express nor an implied agreement to assume the risk of employment could be sustained that the defense of assumption of risk was entirely abolished in all cases between master and servant for damages for injuries caused by negligence. An appeal was taken from the Rosasco case, but before it came on for argument the case was settled. These decisions would seem to remove any obstacles which may be found in the Ives case against upholding elective workmen's compensation laws. The discussion in the Ives case related to a compulsory law which made the employer liable without regard to his negligence or freedom therefrom. Of course under the common law or employers' liability acts even though all the common-law defenses are abolished the workman must still prove that his employer was negligent in order to recover. Therefore the later decisions are not very persuasive on the question of whether or not compulsory workmen's compensation laws are valid in the absence of constitutional amendment specifically authorizing the enactment of such statutes. 8. Brief review of the American laws thus far passed. All the laws thus far passed, with the exception of those in Arizona, Washington, California and New York, are elective. In Ohio, also, a law has been passed to take effect, so far as the compulsory feature is concerned, on January 1, 1914.1 Under a provision of the amended Constitution of that 1 The taking effect of the compulsory law in Ohio has been left in doubt by a referendum petition which is in litigation and had not been decided when this edition went to press. In ordinary course the referendum petition would have been decided at the election in the fall of 1913. Court proceedings were taken to test the validity of the referendum and these proceedings were pending undetermined when the election was held in 1913. The Ohio Industrial Commission takes the position that the compulsory law went into full effect on Jan. 1, 1914. See note prefixed to text of Ohio law. Brief review of the American laws thus far passed State, the Legislature is empowered to enact a compulsory statute. The present law, which remains in effect so far as the compulsion is concerned, up to January 1, 1914, is an elective act. In other respects the amended law went into effect on June 17, 1913. In Washington, Oregon, West Virginia and Ohio the statutes are founded on the State insurance plan to a greater or less extent. This does not mean that the State guarantees the payments, but merely that State officers supervise the State insurance fund which is authorized to be created. In none of these commonwealths where State insurance plans are in force, except in Ohio, can the employer adopt the workmen's compensation principle at all without also adopting the State insurance plan. In Ohio, under the amended law, employers are given the option in certain cases to carry the risk themselves or to become members of mutual associations. The State insurance statutes except the West Virginia Act and new one in Ohio apply to a limited number of occupations only. In the other States the laws either impose a personal liability on the employer, or on an insurance association or company in which the employer carries the risk incident to the workmen's compensation act, or on a State insurance fund, which the employer has the option of joining in a few commonwealths. In California, Connecticut, Michigan and New York the employer has the option of self-insurance, stock company insurance, joining a mutual association or a State insurance fund. In some of the States no assurance is required at all, the liability being carried by the employer personally. Massachusetts has a law which, until very recently, was peculiar to that State. Texas has now adopted a statute similar in many respects to the Massachusetts law. In Massachusetts the Act provides for the creation of a mutual insurance company, which, at first, was organized by directors appointed by the Governor. Subsequently the employers who became members elected the directors Brief review of the American laws thus far passed and thereafter it became purely a private mutual insurance company. Other mutual associations authorized to do business under the laws of Massachusetts and also stock liability insurance companies authorized by the laws of Massachusetts to do business in that State stand on the same basis that the State company occupies. Claims for compensation are paid directly by any of the insurance companies carrying particular risks. Employers are not permitted to adopt the compensation principle without showing that they have secured an insurance policy in a duly authorized company and when their insurance lapses they are deprived of the benefits of the limitations contained in the Compensation Act. As before stated, the new Texas Act is constructed very much on the principles of the Massachusetts statute. In Michigan still another plan was adopted. There employers are permitted to carry their own risks if they can demonstrate to the satisfaction of the proper authorities that they are financially responsible and able to carry such risks; or they may insure in mutual insurance associations created under the laws of the State of Michigan; or they may insure in stock liability insurance companies authorized to do business under the laws of the State of Michigan; or they may join a State insurance fund which is administered by the Commissioner of Insurance. The disputes over claims for compensation are decided by the Industrial Accident Board created by the Act with a right of review in the courts in certain cases. An employer cannot adopt the compensation principle without either taking one of the forms of insurance specified or demonstrate to the Commissioner of Insurance that he is financially able to carry the risk himself. Somewhat similar statutes with important modifications have been passed in California and Connecticut. The New York Act is a combination of the Ohio and the Michigan statutes, also with important modifications. The requirement that an employer should insure is, of course, for the benefit of the workmen. The conditions under Brief review of the American laws thus far passed workmen's compensation acts are very different from those which exist under employers' liability statutes. Under the common-law or employers' liability acts the workman can bring an action and secure a judgment for a specified sum of money, which he can enforce for the entire sum immediately. Under workmen's compensation acts the payments are deferred and are distributed over a large number of weeks, months, or years in some instances. An employer who is perfectly solvent when the award is made may be in bankruptcy before the end of the term during which compensation is payable. It is important, therefore, for the purpose of protecting the workmen, to see that the deferred payments are assured in some way. There is a great variance in the different statutes as to the benefits which are paid. In the first place, practically all of the statutes allow a waiting period of from one to two weeks after the accident before any compensation is allowed. In some of them, compensation for the full period of disability is allowed if such disability continues more than a specified number of weeks. All of the statutes allow certain sums for medical attention during a period varying from two weeks, as in New Jersey, for example, to ninety days, as in the California law. The amount payable for medical attention is limited in some statutes and is entirely unlimited in others. The amount payable for temporary disability varies from 50% to 6623% of the wages of the man at the time of the injury or his average wages during a specific time, usually a year just prior to the injury. In certain rare instances even a larger percentage of wages is allowed. In cases of total permanent disability, such as the loss of two hands, two arms, two eyes, etc., some of the statutes allow compensation for the remainder of the life of the workman. Most of them, however, limit the total compensation to be paid in such cases either by the number of weeks or by the total sum disbursed. |