with a firm engaged in building opera- | ly after the English act, none of them are tions on their own premises, supplies the couched in the precise terms of that act, labor for the brick work,-the workmen and consequently the conclusions of the so supplied, although paid by him, being courts as to the proper construction to under the control, while at work, of the be given to the various provisions of the foreman of the building owners,-is not different statutes do not necessarily folan "undertaker." 35 low the decisions of the English courts. Nevertheless, the American courts, although not considering the latter decisions as binding, do attach great weight to them and frequently cite them as precedents. It has therefore been deemed wise to group and arrange the American decisions so far as the character of the statutes permit, in the same general manner as the English decisions were arranged in the earlier part of this note, where, it is to be observed, the classification follows the order of the clauses in the English act. By means of frequent cross references a comparison of the decisions can be easily and quickly made.

A firm of engineers who have sold a hay-cutting machine are "undertakers" as regards one of their workmen, who is injured while its operation is being tested.36 A railroad company is liable as undertaker for injuries to a workman employed in "tipping" coal into vessels, where it owns the machinery by which the tipping is done, although the work has been contracted out to a third person who employs the applicant.37

j. When workmen employed in ship building yard are not excluded from

provisions of the act.

The question whether a dock 2 miles from a shipbuilding yard was "near" it was held to be a question of fact, not of law.38 In the case cited the court agreed with the finding of the arbitrator in favor of the servant, as having been injured "near" the yard. A ship in the harbor not more than 1 miles from a shipbuilding yard is not "near" the yard.39 A vessel being completed 100 yards away from the quay is not "about" a quay 40

Part C. American decisions.

Inasmuch as practically every one of the statutes differs in some respects from all the others, and many of the decisions are cases of first impression, and as yet stand alone, anything like a logical or scientific arrangement or classification is impossible, and this annotation must in places, at least, appear fragmentary and disconnected. Effort has been made, however, to bring together the decisions upon the corresponding statutory provisions, pointing out, so far as justified by the language of the court, the similarities or

XXIV. Introduction to American deci- differences in the statute in order to

While it is not proposed to analyze the American statutes at any length, a few of the marked characteristics and differences should be noted in order to understand more clearly the decisions. These observations will be general in character, and will not touch upon the individual peculiarities of the particular statute. In regard to the application of the statutes generally, they may be divided into two groups,-elective and compulsory. The elective statutes give the option to the employer and employee (the employees only have the option under the Arizona law) to come under the statute or to retain the rights and obligations under the common law or existing statutes. The compulsory statutes, such as those of Washington, New York, California, and Ohio,11 do not afford any

41 The most striking difference between the California act of 1911 and the later act

such option, but take the place of the existing laws as to all employers and employees coming within the terms of the act. It should be noted that some of the compulsory statutes, such as those of New York and Washington, apply only to certain designated occupations considered extrahazardous in character. Certain occupations, such as farm labor and domestic service, in which the danger of serious personal injury is very small, are specially excepted from the operation of many of the elective statutes.

Compensation acts differ from other acts, such as the employers' liability acts, fellow servant statutes, etc., in that the recovery of compensation is not predicated upon the fault of the master, actual or imputed, but solely upon loss of wage-earning ability. An employee who suffers a loss of such wage-earning ability by accident or personal injury arising out of his employment is entitled to compensation although the master has not been negligent; and even if the workman has himself been negligent, if such negligence on his part does not amount to wilful or intentional misconduct. Almost all of the statutes, particularly the optional acts, contain provisions both as to the employer's liability for damages and

Again, in respect to the provisions relative to payment of compensation, the statutes may be divided into two classes, -direct payment and insurance statutes. The direct payment statutes, following the English act, provide for the payment as to the awarding of compensation to of the compensation by the employer di- the injured workman. The distinction rectly to the employee; 42 while insurance between compensation statutes and the statutes require the employer to take out employers' liability acts has not always insurance either with an insurance been preserved in the official titles to the bureau operated by the state, or with a acts, and some of them have properly the private company, and if an employee is joint title of "employers' liability and injured, the compensation is paid by the workmen's compensation" act, since they insurer. Under some insurance statutes, contain features of both kinds. The conthe premium to be paid by the employer fusion thus arising has been noted by is based solely upon the character of his some courts.43 In this note the term business and the size of his pay roll. In "compensation" will in all cases be used one respect, at least, these latter statutes to designate the statute if the case arises tend to accomplish one of the great pur- under the compensation features of the poses of all of the acts, namely, the re-act, although other portions of the act moval of friction between the employer and the employee. Theoretically, at least, may deal with employer's liability propit is immaterial to the employer from a erly so-called. financial standpoint, whether an injured employee receives compensation or not. His financial obligations are terminated on the payment of his premium, and he has no reason to object to the payment of compensation which is presumed to aid his employee and make him a more useful

servant.

،

of 1913 is that the compensation provisions of the latter statute are compulsory on all employees and employers coming within its terms. Western Indemnity Co. v. Pillsbury (1915) Cal., 151 Pac. 398.

-

42 The Connecticut act is a direct settlement act as distinguished from an insurance act. Kennerson v. Thames Towboat Co. (1915) 89 Conn. 367, post, 436, 94 Atl. 372. 43 The act of April 4th, 1911 (P. L. p. 134), should be designated and referred to as the "workmen's compensation act;" and the act of April 13th, 1909 (P. L. p. 114), as the "employees' liability act." Gregutis v. Waclark Wire Works (1914) 86 N. J. L. 610, 92 Atl. 354, affirming N. J. L. 91 Atl. 98.

44 In Young v. Duncan (1914) 218 Mass. 346, 106 N. E. 1, in speaking of the purpose of the statute, the court said: "It was a humanitarian measure, enacted in response to a strong public sentiment that the reme dies afforded by actions of tort at common

As has been stated earlier in the note, it is not the purpose of annotation of this character to enter into a discussion of the sociological and ethical grounds adA few vanced in support of these acts. judicial statements of the purposes of the acts, however, may be of interest and will be found in the note below.44 law and under the employers' liability act have failed to accomplish that measure of protection against injuries, and of relief in case of accident, which it was believed should be afforded to the workman."

In McRoberts V. National Zine Co. (1914) 93 Kan. 364, 144 Pac. 247, the court, in speaking of the purpose of the act, said: "In the enactment of the compensation law the legislature recognized that the commonlaw remedies for injuries sustained in certain hazardous industries were inadequate, unscientific, and unjust, and therefore a substitute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversies and litigation, and place the burden of accidental injuries incident to such employments upon the industries themselves; or rather, upon the consumers of the products of such industries."

By the logic of the workmen's compensa- | in Wood v. Camden Iron Works (1915) 221 tion act, personal injuries to employees are a natural element in the cost of production, and are necessarily paid by the consumers of the things produced. Marshall, J., in Milwaukee v. Miller (1913) 154 Wis. 652. ante, 1, 144 N. W. 188, Ann. Cas. 1915B, 847, 4 N. C. C. A. 149.

One main purpose of the act is to establish between the employee and the employer, in place of the common-law or statutory method of redress for personal injury based upon tort, a system whereby compensation for all personal injuries or death of the employee received in the course of and arising out of his employment, whether through unavoidable accident, negligence, or otherwise (except through his serious and wilful misconduct), shall be determined forthwith by a public board and paid by the insurer. Gould's Case (1913) 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60.

Proper administration of the workmen's compensation act requires appreciation of the manifest legislative purposes to abolish the common-law system regarding injuries to employees as unsuited to modern conditions and conceptions of moral obligations, and erect in place thereof one based on the highest present conception of man's humanity to man, and obligations to members of the employee class,-one recognizing every personal loss to an employee, not self-inflicted, as necessarily entering into the cost of production, and required to be liquidated in the step ending with consumption. Marshall, J., in Milwaukee v. Miller (Wis.) supra.

Fed. 1010, said: "I think that the logical result of such construction is that the contract of employment provided for in the statute is to pay in consideration of work to be done, so much during the time the employee is working, and if he shall be injured, his wages shall be considered to have been increased in the proportions allowed by the statute for the time therein provided, the excess to be payable at certain designated periods in the future."

V.

45 Hotel Bond Co.'s Appeal (1915) 89 Conn. 143, 93 Atl. 245; Kennerson Thames Towboat Co. (1915) 89 Conn. 367, post, 436, 94 Atl. 372; Coakley's Case, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A, 867, 4 N. C. C. A. 508; Sullivan's Case (1914) 218 Mass. 141, post, 378, 105 N. E. 463, 5 N. C. C. A. 735; Young v. Duncan (1914) 218 Mass. 346, 106 N. E. 1; Meley's Case, 219 Mass. 136, 106 N. E. 559; State ex rel. Virginia & R. L. Co. v. District Ct. (1914) 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076; Re Petrie (1915) 215 N. Y. 335, 109 N. E. 549; Winfield v. New York C. & H. R. R. Co. (1915) 168 App. Div. 351, 153 N. Y. Supp. 499; McQueeney v. Sutphen, 167 App. Div. 528, 153 N. Y. Supp. 554; Sadowski v. Thomas Furnace Co. (1914) 157 Wis. 443, 146 N. W. 770.

The provisions of the Minnesota act should be given a very liberal construction State ex rel. Splady v. District Ct. (1915) 128 Minn. 338, 151 N. W. 123; State ex rel. Northfield v. District Ct. (1915) Minn. 155 N. W. 103.

The Wisconsin act should be liberally construed in favor of life, health, and limb. Tallman v. Chippewa Sugar Co. (1913) 155 Wis. 36, 143 N. W. 1054.

Elective workmen's compensation acts, such as the Connecticut act, are founded upon the theory of a contract existing between the workman and the employer, an implied consideration of which is provision for compensation for injury to the work man, arising in the course of his employment, not through his intentional or wilful misconduct. Hotel Bond Co.'s Appeal | Cas. 1915D, 154, 4 N. C. C. A. 786. (1915) 89 Conn. 143, 93 Atl. 245.

The Washington act, although in derogation of the common law, should be liberally construed, having regard to the former law and the defects or evils sought to be cured and the remedy provided. Peet v. Mills, 76 Wash. 437, post, 358, 136 Pac. 685, Ann.

In speaking of the nature of the payment to be made by the employer to an injured employee, Haight, District Judge,

The Washington act, because of its humaneness and declaration of a new public policy, should be interpreted liberally and broadly in harmony with its purpose

Michigan court.46 And probably none of | barred unless agreed upon or sought to

the courts would give the act such a broad construction as to include employees or accidents not within its provisions either by express language of the act, or by a necessary implication therefrom,47 although the Washington court has said that the act should be construed to include those within the reason, although outside the letter, of the statute.48

'b. Retroactive effect of statutes.

be adjudged within one year is not retroactive so as to apply to the case of an accident which occurred before the act of 1913, containing the limitation, was passed.50

The claim to compensation by a dependent of a deceased workman is governed by the act which was in effect at the time of his death, and not by the law in effect at the time of his injury.51

c. Occupations to which acts are applicable.

Several of the statutes have been held not to apply to injuries occurring before their passage. Thus, the Arizona statute (Special Laws [Ariz.] 1912, p. 23, Special Session) has no application to injury occurring before its passage. 49 And the provision in the New Jersey act of 1913 that claims for personal injury shall be to protect injured workmen and their de-acter, and is to have a liberal construction, pendents, independent of question of fault. Wendt v. Industrial Ins. Commission (1914) 80 Wash. 111, 141 Pac. 311, 5 N. C. C. A.

Not all of the American statutes are applicable to all classes of employers, nor to all classes of employment. Some of them do not apply unless the employer employs a certain number or more of employees; while other statutes apply only to certain specifically designated employ

790.

In construing a statute which is referable to the police power, and was originated to promote the common welfare, supposed to be seriously jeopardized by the infirmities of an existing system, the conditions giving rise to the law, the faults to be remedied, the aspirations evidently intended to be embodied in the enactment, and the effect and consequences as regards responding to the prevailing conception of the necessities of public welfare, should be considered, and the enactment given such broad and liberal meaning as can be fairly read therefrom, so far as required to effectively eradicate the mischief it was intended to obviate. Marshall, J., in Milwaukee v. Miller (1913) 154 Wis. 652, ante, 1, 144 N. W. 188, Ann. Cas. 1915B, 847, 4 N. C. C. A. 149.

46 The statute, being in derogation of the common law, should be strictly construed although it is remedial, and provides a remedy against a person who otherwise would not be liable. Andrejwski v. Wolverine Coal Co. (1914) 182 Mich. 298, 148 N. W. 684, 6 N. C. C. A. 807.

47 The Washington act, being in derogation of the common law, cannot be construed so as to include those who do not, by words or necessary implication, come within its terms. Hillestad v. Industrial Ins. Commission (1914) 80 Wash. 426, 141 Pac. 913, 6 N. C. C. A. 763.

The statute is highly remedial in character, and the court ought, therefore, to guard against a narrow construction, and should not exclude a servant from the benefits thereof unless constrained by unambiguous language, or the clear intent as gathered from the entire act. State ex rel. Duluth Brewing & Malting Co. v. District Ct. (1915) 129 Minn. 176, 151 N. W. 912.

"While the statute is of a remedial char

no doubt, for the purposes for which it is designed, it is not to be extended by implication to accidents not clearly within the language of the act." De Voe v. New York State R. Co. (1915) 169 App. Div. 472, 155 N. Y. Supp. 12.

48 "The act should be liberally interpreted to the end that the purpose of the legislature in suppressing the mischief and advancing the remedy to be promoted, even to the inclusion of cases within the reason, although outside the letter, of the statute; and that every hazardous industry within the purview of the act should bear the burden arising out of injuries to its employees, regardless of the cause of the injury." Zappala v. Industrial Ins. Commission (1914) 82 Wash. 314, post, 295, 144 Pac. 54.

49 Arizona & N. M. R. Co. v. Clark (1913) 125 C. C. A. 305, 207 Fed. 817 (affirmed on appeal from decision on other points in 235 U. S. 669, 59 L. ed. 415, L.R.A.1915C, S34, 35 Sup. Ct. Rep. 210).

50 Birmingham v. Lehigh & W. Coal Co. (1915) N. J. L. 95 Atl. 242.

The provisions of the act of 1913, requiring all claims of compensation to be filed within one year after the accident, does not apply to a claim for compensation arising under the act of 1911. Baur v. Court of Common Pleas (1915) N. J. L., 95 Atl. 627.

51 In State ex rel. Carlson v. District Ct. (1915) Minn. -, 154 N. W. 661, the employee was injured on June 30th, and died from the effects of the injury at about 1:30 A. M. on the morning of July 1st. The court, in holding that the compensation recoverable was governed by the law which went into effect July 1st, said: "The claim of the plaintiff for compensation does not arise from the injury to her husband, but is a new and distinct right of action created by his death."