California ARTICLE B-SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA Under § 68 of the Arizona Act the absolute right is given to the workman to elect, after the accident, to take either the compensation provided in the statute or to sue for damages at common law. This right is secured in Arizona by constitutional provision. See Chapter II, sub title ARIZONA. CALIFORNIA If both employer and employé have adopted the compensation feature of the statute the remedy under the Compensation Act is exclusive in all cases, with one exception. § 12 (a). This exception is contained in § 12, subd. (b) and (c), of the Act of 1913 which read as follows: "(b) Where such conditions of compensation exist, the right to recover such compensation pursuant to the provisions of this act, shall be the exclusive remedy against the employer for the injury or death, except that when the injury was caused by the employer's gross negligence or wilful misconduct and such act or failure to act causing such injury was the personal act or failure to act on the part of the employer himself, or if the employer be a partnership on the part of one of the partners, or if a corporation, on the part of an elective officer or officers thereof, and such act or failure to act indicated a wilful disregard of the life, limb, or bodily safety of employés, any such injured employé may, at his option, either claim compensation under this act or maintain an action at law for damages. "(c) In all other cases where the conditions of compensation do not concur, the liability of the employer shall be the same as if this act had not been passed." California It has been held by the California Industrial Accident Board that in such an action the employer does not have the right to interpose the usual common-law defenses. The Roseberry Act, of 1911, abolished the defenses of assumption of risk and negligence of fellow servant and greatly modified the defense of contributory negligence, as to all employers who did not elect to operate under that Act. There is nothing in the Act of 1913 which abolishes or modifies the common-law defenses. The repealing clause in the Act of 1913 is contained in § 90, which provides: "All acts or parts of acts inconsistent with this Act are hereby repealed." As there is nothing in the Act of 1913 about the abolition of the common-law defenses that part of the Act of 1913 is not inconsistent with the Act of 1911. On the other hand, much of the Act of 1913 is, of course, very inconsistent with the Roseberry Act of 1911. The Roseberry Act contained, in § 3, provisions very similar to those found in § 12 (b), of the Act of 1913, quoted above, and provided further that in actions brought under that section the previous provisions, modifying the common-law defenses, should apply. The Board holds that by reading the two Acts together, that is, the Act of 1913 and such portions of the Roseberry Act of 1911 as are not inconsistent therewith, and are thus not repealed, the employer is still subject to the provisions of the Roseberry Act modifying the common-law defenses in actions under § 12 (b) of the Act of 1913. The Insurance Commissioner has ruled that the increased liability under § 12 (b) is not insurable either by the State fund or by casualty companies. See § 35 (b). When the injury is due to the wrongful act of a third party, if the employé elects to claim compensation from his employer, any cause of action in favor of the employé and against such third party is, by the fact of making the claim for compensation, automatically assigned to the employer, who may sue thereon in his own name. § 31. If the recovery is greater than the liability for compensation the Connecticut balance is held in trust for the workman, or his dependents, as the case may be. § 31. CONNECTICUT If both employer and employé are subject to the compensation feature of the statute the right of the employé to claim compensation measures the complete liability of the employer to the employé. Part B, § 1, quoted below. If the injury is due to the wrongful act of a third person the employé has the option to sue such third person or claim compensation from his employer. § 6. Should the employé, in such a case, claim compensation the right of action against the third person goes to the employer by subrogation. § 6. An amount recovered in excess of the liability for compensation goes to the employé. § 6. Part B, § 1, provides: "Part B, § 1. Acceptance of Part B. When any persons in the mutual relation of employer and employee shall have accepted part B of this act, the employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from injury so sustained; but the employer shall pay compensation on account of such injury in accordance with the scale hereinafter provided, except that no compensation shall be paid when the injury shall have been caused by the wilful and serious misconduct of the injured employee or by his intoxication. The acceptance of part B of this act by employers and employees shall be understood to include the mutual renunciation and waiver of all rights and claims arising out of injuries sustained in the course of employment as aforesaid, other than rights and claims given by part B of this act, including the right of jury trial on all questions affecting compensation and all right of appeal from the compensation commissioners except as hereinafter established." Connecticut 1 It should be noted that the employer is not relieved of liability for common-law damages until he has complied with Part B, § 30, in relation to insuring the payment of compensation claims, or to securing permission from the Compensation Commission to carry the risk without insurance. Part B, § 42. The Attorney General has held that all employés, including those specified in § 2 of Part A, are subject to the compensation features of the statute. Therefore if an employer having regularly less than five employés or who employs casual employés, or outworkers, desires to avoid suits for damages for injuries due to negligence he must not only adopt the compensation feature of the statute, but he must also comply with the provisions of Part B, § 30. The election to adopt the compensation provision is presumed, in the absence of affirmative action to the contrary. Part B, §§ 2 and 3. But unless the employer goes further and complies with § 30 of Part B he shall be liable "as if he had not accepted" the compensation feature of the statute. Part B, § 42. In some instances it will be practically impossible for an employer to adopt the compensation principle as to particular employés. For example, if a person should employ a porter to carry his grip to the station the porter would be a casual employé. Manifestly it would be impossible for the employer to comply with all the provisions of the Statute as to this porter, unless he can secure a blanket policy of insurance in advance covering all such cases, or secures the approval of the compensation commission as to his financial ability to carry such risks. The result is that as to such employés the employer will be liable to common-law damages in an action based on negligence, or, probably at the election of the employé, to a claim for compensation. But the common-law defenses in such an action are not abolished. Part A, §§ 1 and 2. The only way the employer can avoid 1 The Attorney General has held that the word "Commissioner" in the first sentence of § 30 means the Compensation Commissioner. Connecticut this double liability as to casual employés is to specify in the contract of employment that Part B of the Compensation Act shall not apply. It is not entirely clear that an employer who adopts the compensation principle and then fails to comply with § 30 is liable to the optional remedy of the employé. Acceptance of the compensation principle is presumed. Part B, § 2. The last-mentioned section does. not say anything about what the effect will be if the employer fails to comply with Part B, § 30. Then Part B, § 42, provides that if an employer fails to comply with Part B § 30 he "shall thereby forfeit all benefits hereunder and shall be liable as if he had not accepted the same." Of course, the employer's liability if "he had not accepted the same" would be that he would be liable for common-law damages only, and in such an action he would not have the benefit of the common-law defenses. Apparently the statute is somewhat inconsistent, but nowhere is the conclusive presumption of acceptance found in Part B, § 2, absolutely destroyed, except by inference. The probabilities are, therefore, that the employé has the double or optional remedy, in cases where the employer does not take steps to reject the Act and then fails to comply with § 30. Probably few employers will find it expedient to adopt the compensation feature of the act in relation to "outworkers" specified in Part A, § 2, and defined in Part B, § 43, as persons "to whom articles or materials are given to be treated in any way on premises not under the control or management of the person who gave them out." The cases are very rare in which such an outworker could sustain an action for damages based on negligence, against the employer, although they are not impossible of occurrence. An injury might happen while such an outworker was on the employer's premises to secure the materials upon which the work was to be performed. In such a case an employer who had not adopted the compensation feature of the statute as to such an employé would be liable in an action for |