Oregon

his workmen during the period of such default in any payment required hereunder, the defaulting employer shall not, if such default be after demand for payment, be entitled to any of the benefits of this Act, but shall be liable to the injured workman (or the husband, wife, child or dependent of such workman in case death result from the injury) as he would have been prior to the passage of this Act." § 24. If the recovery actually collected from the employer is equal to or exceeds the compensation the claimant is not entitled to anything from the accident fund. If such amount is less than the compensation provided the accident fund must contribute the deficiency. "The person entitled to claim under this section shall have the choice, to be exercised before commencing suit against such defaulting employer, of proceeding by suit against such employer or of taking under this Act. If such person shall elect to take under this Act, the cause of action shall be assigned to the Commission for the benefit of the Accident Fund." $24.

"If any workman shall sustain an injury which the Commission shall determine to have been caused in whole or in part by the failure of his employer to install or maintain any safety appliance, device or safeguard required by statute, such workman, or, if such injury result in death, then the husband, wife, child or dependent of such workman, shall have the same rights against such employer as in the case of an employer defaulting in payments due hereunder, and all of the provisions of the preceding section shall apply with respect to such claim, provided in case the workman or his beneficiary proceeds against the employer he shall have no claim against the Accident Fund." § 25.

"§ 34. Nothing in this Act shall be deemed to abrogate the rights of the employé under the present employers' liability law, in all cases where the employé, under this act, is given the right to bring suit against his employer for an injury."

Texas

RHODE ISLAND

The right to compensation under the Act is in lieu of all other rights and remedies where both the employer and the employé have adopted the compensation provision. Article I, §§ 6 and 7.

If the injury was caused by the act of a third person the employé may take proceedings both against that person to recover damages and against any person liable to pay compensation, but he shall not be entitled to receive both damages and compensation. If compensation has been paid under the Act, the person by whom the compensation was paid, shall be entitled to indemnity from the person so liable to pay damages, and to the extent of such indemnity the employer shall be subrogated to the rights of the employé to recover damages. Article III, § 21.

TEXAS

The right to compensation as to such employers as become "subscribers" is in lieu of all other claims except such as are specificially provided for in the Act. Part I, § 3.

Where death is caused by homicide "through the wilful act or omission or gross negligence of any person, firm or corporation, the employer of such employé at the time of the injury causing the death of the latter and in all cases where exemplary damages are sought under this section in case the injured party has already been awarded actual damages by the Board herein provided, said fact and said amount so received shall be made known to the court or jury trying said cause for exemplary damages; and on the issue for exemplary damages he shall have the same defenses as under the existing law." The foregoing provision is an additional remedy where death is caused as stated in this section. Part I, § 5.

Washington

WASHINGTON

Civil causes of action for personal injury and all jurisdiction of the courts of the State over such causes are abolished as to such injuries as are caused in the occupations covered by the statute, except as in the Act otherwise specifically provided. § 1.

In a note to § 1 the Industrial Insurance Commission of Washington states: "Employés as members of the public have their rights against third persons as heretofore."

Section 3 of the Act provides: "If the injury to a workman occurring away from the plant of his employer is due to the negligence or wrong of another not in the same employ, the injured workman, or if death results from the injury, hist widow, children or dependents, as the case may be, shall elect whether to take under this Act or seek a remedy against such other, such election to be in advance of any suit under this section; and if he take under this Act, the cause of action against such other shall be assigned to the State for the benefit of the Accident Fund; if the other choice is made, 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 this Act for such case. Any such cause of action assigned to the State may be prosecuted, or compromised by the Department, in its discretion. Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the Accident Fund, may be made only with the written approval of the Department."

The payment of compensation shall be in lieu of any and all rights of action whatsoever against any person whomsoever. § 5.

Any injury happening while the employer is in default in making any payment to the State Fund the defaulting employer is not entitled to any of the benefits of the Act, but

Washington

shall be liable to suit by the injured workman or to a dependent, as he would have been prior to the passage of the Act. § 8. In case the amount collected in such a suit equals or exceeds the compensation to which the plaintiff would be entitled the plaintiff shall not be paid anything out of the accident fund; if the said amount shall be less than such compensation under the act the accident fund shall contribute the deficiency. The person entitled to sue shall exercise his election before bringing suit. § 8. If such person decides to claim compensation the cause of action against the employer shall be assigned to the State for the benefit of the accident fund. § 8. In any such suit the defenses of assumption of risk and negligence of fellow servant shall not be pleaded by the employer and the doctrine of comparative negligence shall obtain. § 8. In case of an injury, caused by the absence of a safeguard or protection, required to be provided or maintained by or pursuant to any statute or ordinance or any departmental regulation under any such statute, or if the workman at the time of the injury is less than the prescribed age for the employment of a minor, in the occupation in which he shall be engaged when injured, the employer is required to pay into the fund an amount equal to fifty per cent of the amount of compensation. This additional amount, however, does not appear to go to the workman. $9.

Section 8 of the statute provides:

"If any employer shall default in any payment to the accident fund hereinbefore in this act required, the sum due shall be collected by action at law in the name of the State as plaintiff, and such right of action shall be in addition to any other right of action or remedy. In respect to any injury happening to any of his workmen during the period of any default in the payment of any premium under section 4, the defaulting employer shall not, if such default be after demand for payment, be entitled to the benefits of this act, but shall be liable to suit by the injured workman (or the husband, wife, child or de

West Virginia

pendent of such workman in case death result from the accident), as he would have been prior to the passage of this act.

"In case the recovery actually collected in such suit shall equal or exceed the compensation to which the plaintiff therein would be entitled under this act, the plaintiff shall not be paid anything out of the accident fund; if the said amount shall be less than such compensation under this act, the accident fund shall contribute the amount of the deficiency. The person so entitled under the provisions of this section to sue shall have the choice (to be exercised before suit) of proceeding by suit or taking under this act. If such person shall take under this act, the cause of action against the employer shall be assigned to the State for the benefit of the accident fund. In any suit brought upon such cause of action the defense of fellow servant and assumption of risk shall be inadmissible, and the doctrine of comparative negligence shall obtain. Any such cause of action assigned to the State may be prosecuted or compromised by the department in its discretion. Any compromise by the workman of any such suit, which would have a deficiency to be made good out of the accident fund, may be made only with the written approval of the department."

WEST VIRGINIA

Where both employer and employé are subject to the compensation provisions of the statute the right of the employé to claim compensation is in lieu of all other demand. $ 22.

If the employer is in default in paying premiums to the State Fund he is liable for damages without the benefit of the common law defenses. § 26.

"If injury or death result to an employé from the deliberate intention of his employer to produce such injury or death, the employé, the widow, widower, child or dependent of the employé 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 enacted, for any excess of damages over the amount received or receivable under this Act." $ 28.