New Jersey

If an injury is caused in whole or in part by the wilful failure of the employer to comply with any of the statutes or with any order made under authority of law, the workman or his dependents may sue at common-law, notwithstanding the employer has elected to pay compensation, and in such case the employé is deprived of the defense of assumption of risk. $3.

"§ 4. The right of action for damages caused by any such injury, at common law, or under any statute in force on January one, nineteen hundred and eleven, shall not be affected by this act, but in case the injured workman, or in event of his death his executor or administrator, shall avail himself of this act, either by accepting any compensation hereunder, by giving the notice hereinafter prescribed, or by beginning proceedings therefor in any manner on account of any such injury, he shall be barred from recovery in every action at common law or under any other statute on account of the same injury. In case after such injury the workman, or in the event of his death his executor or administrator, shall commence any action at common law or under any statute other than this act against the employer therefor, he shall be barred from all benefit of this act in regard thereto."

NEW JERSEY

Where both employer and employé have agreed to the compensation provisions of the statute "such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in section II of this act, and an acceptance of all the provisions of section II of this act, and shall bind the employé himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." § II, subd. 8.

Where a third person is liable to the employé or his de

New York

pendents for the injury or death, an action may be brought against such third person. If a sum is recovered which is equivalent to or greater than the total compensation payments for which the employer is liable, the employer is released from the obligation of compensation. If the sum so recovered from the third person is less than the compensation payments the employer is liable for the difference. The liability of the employer under the statute, to make compensation continues until the payments, if any, by the third person, are made. The employer may file with the third person. a statement of the compensation agreement or award between himself and his employé, or the dependents thereof, and the employer shall be entitled to receive from such third person, upon the payment of any amount in release by the third person, a sum equivalent to the amount of compensation payments which the employer has theretofore paid to the employé or his dependents, "which payments shall be deducted by the third person or corporation from the sum paid in release or judgment to the injured employé or his dependents." § III, subd. 23. Added by L. 1913, c. 174. Prior to the amendment it was held that an employé could both sue a third person for damages and claim compensation from his employer and that a release to the third person did not affect the right to compensation as the release related to a tort and the claim for compensation was not based on a tort as far as the employer was concerned. Perlsburg v. Muller (Essex Common Pleas), 35 N. J. Law J. 202; Houghton v. W. G. Root Const. Co. (Mercer Common Pleas), 35 N. J. Law J. 332.

NEW YORK

If the employer who is subject to the provisions of the Act has fully complied with § 50 as to insuring compensation payments the exclusive remedy of the employé is to claim compensation. § 11. If the employer has failed to comply

Ohio

with § 50 then the employé may elect whether he will claim compensation or sue for damages. §§ 11 and 52. If the injury is due to the wrong of a third party the employé may elect to claim compensation or sue such party. § 29.

OHIO

Where employers have paid the premiums to the State Insurance fund or have complied with the provisions of §§ 1465-69; § 22 of the Act of 1913, permitting them, in certain instances, to carry the risk themselves, the sole remedy of the employé (with the exceptions hereafter stated) is to claim compensation either from the State fund or from the employer who is permitted to carry his own risk. § 146570; § 23 of the Act of 1913.

An employé of an employer who has failed to adopt the compensation principle may still elect to apply to the Industrial Commission for compensation, and the Commission is empowered to hear and determine such application for compensation "in like manner as in other claims before the board; and the amount of the compensation which said board may ascertain and determine to be due to such injured employé, or to his dependents in case death has ensued, shall be paid by such employer to the person entitled thereto within ten days after receiving notice of the amount thereof as fixed and determined by the board; and in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, within said period of ten days, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the board, which with an added penalty of fifty per centum, may be recovered in an action in the name of the State for the benefit of the person or persons entitled to the same." § 1465-74; § 27 of the Act of 1913.

If the employer shall default in making payment to the State Insurance fund he is subject to the same procedure

Ohio

being taken against him as that specified above. § 1465-75; § 28 of the Act of 1913.

If the injury is due to "the wilful act of such employer, or any of such employer's officers or agents, or from the failure of such employer or any of such employer's officers or agents to comply with any lawful requirement for the protection of the lives and safety of employés, then in such event, nothing in this act contained shall affect the civil liability of such employer, but such injured employé, or his legal representative in case death results from the injury, may, at his option, either claim compensation under this act or institute proceedings in the courts for his damage on account of such injury." 1465-76; § 29 of the Act of 1913. In such actions the defendant is entitled to plead the defenses of contributory negligence and negligence of fellow servant, but apparently not that of assumption of risk.

A case under § 1465-76 was brought to trial in the United States District Court at Cleveland, in November, 1913, wherein John J. McWeeney was the plaintiff and the Standard Boiler and Plate Company the defendant. A verdict was rendered by the jury in favor of the plaintiff for the sum of $14,000. The defendant was a contributor to the State insurance fund. The case is now on appeal. The workman contended that he and others had warned the foreman under whom they were working that a derrick they were using was unsafe; that the foreman paid no attention to the warning and ordered the men to continue work without repairing the derrick. The trial judge charged the jury that "reckless disregard of another's safety" was a "wilful act" within the meaning of the statute, entitling a workman to recover damages even though the employer had joined the State insurance fund.

"Every employé, or his legal representative in case death results, who makes application for an award, or accepts compensation from an employer who elects, under section twenty-two of this act, directly to pay such compensation,

Oregon

waives his right to exercise his option to institute proceedings in any court, except as provided in section forty-three hereof. Every employé, or his legal representative in case death results, who exercises his option to institute proceedings in court as provided in this section, waives his right to any award, or direct payment of compensation from his employer under section twenty-two hereof, as provided in this act." § 1465-76; § 29 of Act of 1913, last paragraph.

OREGON

Where both employers and employés are under the provisions of the compensation feature of the statute the right to claim compensation "shall be in lieu of all claims against his employer on account of such injury or death except as hereinafter specially provided." § 12.

If the injury is due to the act of a third person the workman or his dependents may elect either to take under the Act or seek a remedy against such third person, and such election must be in advance of any suit. If compensation is taken under the Act the cause of action against a third person is assigned to the State for the benefit of the Accident Fund.

If the workman, or his dependents, elect to sue the third person, the accident fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected, and the compensation provided or estimated by the Act. § 12.

"If the injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman, the widow, widower, child or dependent of the workman shall have the privilege to take under this act, and also have cause of action against the employer, as if this act had not been passed, for damages over the amount payable hereunder." § 22.

If the employer is in default in making any payment to the accident fund "in respect to any injury happening to any of