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Effect of law.

bility by either the insured or the insurer shall, to the extent thereof, be a bar to recovery against the other of the amount so paid: And provided further, That in no case shall the insurer be liable for damages beyond the amount of the face of the policy.

SEC. 9. All policies or contracts made for the insurance of the compensation provided by the workmen's compensation act of this State, or against employers' liability described in section 8 of this act, shall be deemed to be made subject to the provisions of this act, and all provisions of such policies inconsistent herewith shall be void.

Approved March 10, 1917.

TEXAS.

ACTS OF 1917.

CHAPTER 103.-Compensation of workmen for injuries.

[This act amends the compensation law of the State throughout. It is reproduced below.]

PART I.

Defenses

SECTION 1. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for abolished. death resulting from personal injury so sustained, it shall not be a defense:

1. That the employee was guilty of contributory negligence.

2. That the injury was caused by the negligence of a fellow employee.

3. That the employee had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employee to bring about the injury, or was so caused while the employee was in a state of intoxication.

4. Provided, however, That in all such actions against an employer who is not a subscriber, as defined hereafter in this act, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment.

SEC. 2. The provisions of this act shall not apply to actions to recover damages for the personal injuries nor for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to employees of any firm, person or corporation having in his or their employ less than three (3) employees, nor to the employees of any person, firm or corporation operating any steam, electric, street, or interurban railway as a common carrier: Provided, That any employer of three or more employees at the time of becoming a subscriber shall remain a subscriber subject to all the rights, liabilities, duties and exemptions of such, notwithstanding, after having become a subscriber, the number of employees may at times be less than three.

Proviso.

Exemptions.

Provisions

SEC. 3. The employees of a subscriber shall have no right of action against their employer for damages for personal injuries, exclusive. and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employer for damages for injuries resulting in death, but such employees and their representatives and beneficiaries shall look for compensation solely to the association, as the same is hereinafter provided for: Provided, That all compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.

Waiver pre

SEC. 3a. An employee of a subscriber shall be held to have waived his right of action at common law or under any statute of sumed. this State to recover damages for injuries sustained in the course of his employment if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed said

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right or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within five (5) days of notice of such subscription. An employee who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five (5) days after its delivery to his employer or his agent: Provided further, That .any employee of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his em ployment, as above provided in this section, shall, as well as his legal beneficiaries and representatives, have his or their cause of action for such injuries as now exist by the common law and statutes of this State, which action shall be subject to all defenses under the common law and statutes of this State.

SEC. 3b. If an employee who has not given notice of his claim of common law or statutory rights of action, as provided in section 3a, Part I, of this act, or who has given such notice and waived the same, sustains an injury in the course of his employment, he shall be paid compensation by the association as hereinafter provided, if his employer is a subscriber at the time of the injury.

SEC. 4. Employees whose employers are not at the time of the injury subscribers to said association, and the representatives and beneficiaries of deceased employees who at the time of the injury were working for nonsubscribing employers can not participate in the benefits of said insurance association, but they shall be entitled to bring suit and may recover judgment against such employers, or any of them, for all damages sustained by reason of any personal injury received in the course of employment or by reason of death resulting from such injury, and the provisions of section 1 of this act shall be applied in all such actions.

SEC. 5. Nothing in this act shall be taken or held to prohibit the recovery of exemplary damages by the surviving husband, wife, heirs of his or her body, or such of them as there may be of any deceased employee whose death is occasioned by homicide from the willful act or omission or gross negligence of any person, firm or corporation from the employer of such employee at the time of the injury causing the death of the latter: Provided, That in any suit so brought for exemplary damages the trial shall be de novo, and no presumption shall exist that any award, ruling or finding of the industrial accident board was correct; and in such suit brought by the employee or his legal heirs or representatives against such association or employer, such award, ruling or finding shall neither be pleaded nor introduced in evidence.

SEC. 6. No compensation shall be paid under this act for an injury which does not incapacitate the employee for a period of at least one week from earning full wages, but if incapacity extends beyond one week compensation shall begin to accrue on the eighth day after the injury: Provided, however, The medical aid, hospital services, and medicines, as provided for in section 7 hereof, shall be supplied as and when needed and according to the terms and provisions of said section 7: And provided further, That if incapacity does not follow at once after the infliction of the injury or within eight (8) days thereof, but does result subsequently that compensation shall begin to accrue with the eighth day after the date incapacity commenced. In any event the employee shall be entitled to the medical aid, hospital services and medicines as provided elsewhere in this act.

SEC. 7. During the first two weeks of the injury, dating from the date of its infliction, the association shall furnish reasonable medical aid, hospital services and medicines. If the association fails to so furnish same as and when needed during the time specified, after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, hospital services and medicines at the cost and expense of the association. The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital serv

Ices or medicines nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time: Provided, however, That at the time of the injury or immediately thereafter, if necessary, the employee shall have the right to call in any available physician or surgeon to administer first-aid treatment as may be reasonably necessary at the expense of the association. During the second or any subsequent week of continuous total incapacity requiring the confinement to a hospital, the association shall, upon application of the attending physician or surgeon certifying the necessity therefor to the industrial accident board and to the association, furnish such additional hospital services as may be deemed necessary, not to exceed one week, unless at the end of such additional week the attending physicians shall certify to the necessity for another week of hospital services or so much thereof as may be needed: Provided, however, That such additional hospital services as are provided for in this paragraph shall not be held to include any obligation on the part of the association to pay for medical or surgical services not ordinarily provided by hospitals as a part of their services.

SEC. 7a. If it be shown that the association is furnishing Change of medical aid, hospital services and medicines provided for by section physician. 7 hereof in such manner that there is reasonable ground for believing that the life, health or recovery of the employee is being endangered or impaired thereby, the board may order a change in the physician or other requirements of said section, and if the association fails promptly to comply with such order after receiving it, the board may permit the employee or some one for him to provide the same at the expense of the association under such reasonable regulations as may be provided by said board.

SEC. 7b. All fees and charges under sections 7 and 7a hereof shall be fair and reasonable, shall be subject to regulation of the board and shall be limited to such charges as are reasonable for similar treatment of injured persons of a like standard of living where such treatment is paid for by the injured person himself or some one acting for him. In determining what fees are reasonable, the board may also consider the increased security of payment afforded by this act. Where such medical aid, hospital service or medicines are furnished by a public hospital or other institution, payment thereof shall be made to the proper authorities conducting the same, and the amount so paid shall be promptly reported to the board.

Fees.

Attorneys'

SEC. 7c. All fees of attorneys for representing claimants before the board under the provisions of this act shall be subject to the fees. approval of the board. No attorney's fees for representing claimants before the board shall be allowed or approved against any party or parties not represented by such attorney, nor exceeding an amount equal to fifteen per cent of the amount of the first one thousand dollars or fraction thereof recovered, nor ten per cent of the excess of such recovery, if any, over one thousand dollars. And in addition to the reasonable expenses incurred by the attorney in the preparation and presentation of the said claim before the board, such expenses to be allowed by the board: Further provided, That where an attorney represents only a part of those interested in the allowance of a claim before the board' and his services in prosecuting such claim and obtaining an award therein inures to the benefit of others jointly interested therein, then the board may take these facts into consideration and allow the attorney a reasonable charge, to be assessed against the interest of those receiving benefits of the service of such attorney. The attorney's fees herein provided for may be redeemed by the association by the payment of a lump sum or may be commuted by agreement of the parties subject to the approval of the board, but not until the claim represented by said attorney has been finally determined by the board and recognized and accepted by

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the association. After the approval, as first above provided for, if the association be notified in writing of such claim or agreement for legal services, the same shall be a lien against any amount thereafter to be paid as compensation: Provided, however, That where the employee's compensation is payable by the associa tion in periodical installments, the board shall fix at the time of approval the proportion of each installment to be paid on account of said legal services.

SEC. 7d. For representing the interest of any claimant in any manner carried from the board into the courts, it shall be lawful for the attorneys representing such interests to contract with any of the beneficiaries under this act for an attorney's fee for such representation, not to exceed one-third (3) of the amount recovered, such fee for services so rendered to be fixed and allowed by the trial court in which such matter may be heard and determined.

SEC. 8. If death should result from the injury, the association hereinafter created shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty per cent of his average weekly wages, but not more than $15 nor less than $5 a week, for a period of three hundred and sixty weeks from the date of the injury.

SEC. Sa. The compensation provided for in the foregoing section of this act shall be for the sole and exclusive benefit of the surviving husband who has not for good cause and for a period of three years prior thereto abandoned his wife at the time of the injury, the wife who has not at the time of the injury without good cause, and for a period of three years prior thereto abandoned her husband and the minor children, without regard to the question of dependency, dependent parents, and dependent grandparents and dependent stepmothers and dependent children or dependent brothers and sisters of the deceased employee, and the amount recovered thereunder shall not be liable for the debts of the deceased nor for the debts of the beneficiary or beneficiaries, and shall be distributed among such beneficiaries as may be entitled to same as hereinbefore provided according to the laws of descent and distribution of this State; and provided such compensation shall not pass to the estate of the deceased to be administered upon, but shall be paid directly to said beneficiaries when the same are capable of taking, under the laws of the State, or to their guardian or next friend, in case of lunacy, infancy or other disqualifying cause of any beneficiary. And the compensation provided for in this act shall be paid weekly to the beneficiaries herein named and specified, subject to the other provisions of this act.

SEC. 8b. In case death occurs as a result of the injury after a period of total or partial incapacity, for which compensation has been paid, the period of incapacity shall be deducted from the total period of compensation and the benefits paid thereunder from the maximum allowed for the death, respectively, stated in this act.

SEC. 9. If the deceased employee leaves no legal beneficiaries, the association shall pay all expenses incident to his last sickness as a result of the injury and in addition a funeral benefit not to exceed $100: Provided, however, That where any deceased employee leaves legal beneficiaries, but who is buried at the expense of his employer or any other person, the expense of such burial, not to exceed $100, shall be payable out of the compensation due the beneficiary or beneficiaries of such deceased employee, subject to the approval of the board.

SEC. 10. While the incapacity for work resulting from injury is total, the association shall pay the injured employee a weekly compensation equal to sixty per cent of his average weekly wages, but not more than $15 nor less than $5, and in no case shall the period covered by such compensation be greater than four hundred and one (401) weeks from the date of the injury.

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