represent no vested rights, and may be abolished by the Legisla ture. 82 Some Acts, instead of entirely abolishing the defense of contributory negligence, establish the doctrine of comparative negligence.s An Act, such as that of Wisconsin, which abolishes the defense of assumption of risk, but not contributory negligence, makes it important to distinguish between these two defenses.83 Within 82 An employer, not having elected to come within the Act, could not avail himself of the defenses of assumption of risk and contributory negligence, save in mitigation of damages. Spottsville v. Western States Portland Cement Co. (1915) 94 Kan. 258, 146 Pac. 356 (Acts 1911, c. 218, § 8). Contributory negligence may be considered in reduction of damages in common-law action. French v. Clover Leaf Mining Co. (1914) 190 Ill. App. 400. Contributory negligence would not defeat recovery, but would merely diminish the damages recoverable. Memphis Cotton Oil Co. v. Tolbert (Tex. Civ. App.) 171 S. W. 309. 83 "So far as the decision below rests upon the theory that the defense of negligence of a fellow servant was available under section 1816, Statutes, it is wrong. The statute was superseded by the Workmen's Compensation Act. So, if appellant was injured by negligence of his associate, respondent is liable unless contributory negligence, strictly speaking, on his part-inadvertence, as distinguished from assumption of risk-proximately contributed to produce the injury." Salus v. Great Northern Ry. Co., 157 Wis. 546, 147 N. W. 1070. In any action founded upon negligence, brought by an employé or his personal representative against an employer to recover for personal injuries or death resulting therefrom, incurred by the employé in this state while engaged in the line of his duty, the defense of assumption of risk is by section 2394-1 abolished. By this statute in the same class of cases the so-called fellow servant defense was also abolished where there are four servants or more engaged in a common employment. By chapter 599, Laws of 1913, the defense of contributory negligence was in the same class of cases taken away, "when such want of ordinary care was not willful." One effect of these statutes is to make it more than formerly necessary to distinguish between assumption of risk and contributory negligence. Puza v. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223. From the viewpoint of their effect in defeating plaintiff's recovery, assumption of risk and contributory negligence were formerly very much alike. They can no longer be considered from that viewpoint, because there is now no such common viewpoint with reference to cases arising after September 1, 1911, and before June 30, 1913, where there were less than four employés engaged in a common employment, and in such last-mentioned cases where there were more than four employés engaged in a common employment, such an Act, an intended and continued use of a known defective appliance or a known unsafe place by the employé in substantially the same way as the employer instructed or intended it should be used falls under the definition of assumption of risk and is not to be considered contributory negligence. Thus, an employé's use of a visibly defective stepladder pursuant to his employer's commands constitutes assumption of risk, rather than contributory negligence; but where he uses the ladder in a way which may not be required in the exercise of ordinary prudence to carry out his employer's instructions, and the evidence leaves in doubt this question, and also the question whether such use of the ladder contributed to the injury, such questions are for the jury. That a penalty imposed for violation of an Act is to be paid into the state treasury does not make the violation criminal within the case holding that, "when the violation of a statute designed to protect persons against bodily injuries is made a criminal offense, such violation should be classed with gross negligence," and the guilty person held liable for injuries to others, regardless of the contributory negligence of the person injured.86 It does not, therefore, take away the defense of contributory negligence.87 85 An accepting employer does not waive his statutory right to the common-law defenses of assumption of risk, negligence of a fellow but where there was willful want of ordinary care on the part of the injured employé. Under such statutes the effect of assumption of risk and that of contributory negligence on the plaintiff's right of recovery are dissimilar. It would be rash to attempt to indicate in a single decision all the points of difference between assumption of risk and contributory negligence, or to attempt to set limits to the meaning of the expression 'want of ordinary care not willful.'" Id. 84 Puza v. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223. 85 (St. 1913, § 2394-1 and Laws 1913, c. 599) Id. 86 Besnys v. Herman Zehrlaut Leather Co., 157 Wis. 203, 147 N. W. 37, citing: Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803; Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84. 87 Besnys v. Herman Zohrlaut Leather Co., supra. HON.COMP.-8 servant, and contributory negligence, by objecting to the employe's having the benefit of the Wisconsin Act.88 The provision of the Massachusetts Act that it shall not be a defense that the employé has assumed the risks of the injury has no application to a contractual assumption of risk; i. e., a risk assumed by the employé by virtue of his contract of employment, as distinguished from a voluntary assumption of risks outside those assumed under the contract of employment, as, for instance, the employer's failure to furnish safe tools and appliances. This arises from the the fact that the contractual assumption of risk is not a defense, and that with reference to such risks the employer owes no duty and cannot be guilty of negligence.89 A workman, whose injury was due wholly to his own negligence, cannot recover under the West Virginia Act against an employer who has not elected to pay premiums.90 But a declaration in an action against an employer who has not elected to pay premiums is good, where its allegations show that the injury directly resulted from the negligence of some employé or officer other than plaintiff, or resulted from the negligence of such other combined with his own.91 Elective compensation depends, not upon the negligence of the employer as is the case where there has been no election and it is sought to recover compensation by action at law,92 but rests upon 88 Karny v. Northwestern Malleable Iron Co. (1915) 160 Wis. 316, 151 N. W. 786. 89 (St. 1911, c. 751, § 1) Ashton v. Boston & Me. R. Co., 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B, 1281. An experienced workman employed to repair defects in an electric wire system assumed the risks arising out of such defects. (St. 1911, c. 751, § 1) Id. 90 (Wk. Comp. Act, § 26 [Code 1913, c. 15P, § 26 (sec. 682)]) Watts v. Ohio Valley Electric Ry. Co. (W. Va.) 88 S. E. 659. 91 Id. 92 See 4, ante. Where the employer has not brought himself under the Act, he is not liable for accidents attributable to the negligence of no one. Salus v. Great Northern R. Co., 157 Wis. 546, 147 N. W. 1070. the simple fact of the relationship of employer and employé.93 Under the Washington Act, employers who have not contributed to the state insurance fund are deprived of the common-law defenses, and it would seem that the only effective defense available in an action for damages for an alleged injury occurring to an employé in the course of his employment would be that no injury in fact had been sustained, or that the injury received was self-inflicted, or that the employer was himself free from fault. The amount of the recovery should be determined by the "comparative negligence" of all parties." The provision of the Iowa Act which establishes the presumption that the injury resulted from the negligence of an employer who has rejected the Act does not abolish the defense of contributory negligence, but merely places on the employer the burden of affirmatively showing that he was without fault,95 nor does it preclude the employer from proving want of negligence."6 The burden of proving that the workman was contributorily negligent, and that such negligence was willful, so as to relieve from liability his employer, who has not accepted the Michigan Act, rests on the employer.97 93 American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 Atl. 85, 94 Atl. 85. 94 (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 19. 95 An employer who has rejected the Act has the burden of proving that the employé was willfully negligent with intent to cause his own injury, or that the injury was due to the employé's intoxication, and that the injury did not result from the employer's negligence. Hunter v. Colfax Consol. Coal Co. (Iowa) 157 N. W. 145. Where an employer elects to reject the provisions of the Act, there is a presumption raised that the employé's injury grew out of and resulted directly and proximately from the negligence of the employer. (Code Supp. 1913, tit. 12, c. 8a) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. 96 Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037. CHAPTER III PERSONS AND FUNDS LIABLE FOR COMPENSATION Section 26-31. Article I.—Employers, principals, and contractors. 32-40. Article II.-Insurers and funds. 41-48. Article III.-Third persons (indemnity and subrogation). ARTICLE I EMPLOYERS, PRINCIPALS, AND CONTRACTORS Section 26. Primary liability-Who liable as employers. 27. 28. 29. Which of two employers liable. Municipal corporations. Contemporaneous employment by different employers. 30. Principals and contractors. § 26. Primary liability-Who liable as employers The employer, being the person with whom the injured employé has contracted, is the person who is primarily liable, or who must provide the fund out of which compensation must be paid. He is not relieved from liability, even though he provides insurance in a private company under an Act authorizing only such insurance; the purpose of the insurance being to insure certain and prompt payment, and to reimburse him for any and all amounts which he has so paid. He remains primarily liable, and, if the insurance company becomes insolvent, the fact that he insured will not relieve him from liability to pay compensation.2 1 (Acts 35th Gen. Assem. c. 147, Code Supp. 1913, §§ 2477m46–2477m48) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. 2 Id. p. 35. |