! The New Employers' Liability AND Employees’ Compensation Law OF CALIFORNIA CHAPTER 399. Known as Senate Bill No. 14, drafted and introduced by Senator Roseberry of Santa Barbara, amended at the instance of Organ- ised Labor, signed by Governor Hiram W . Johnson on April 8, 1911, and to take effect on September 1, 1911.) ISSUED BY CALIFORNIA STATE FEDERATION OF LABOR SECRETARY’S OFFICE Labor Temple, 316 Fourteenth Street SAN FRANCISCO, CAL. Bulletins pertaining to the work of the .Thirty-ninth Session of the Cali- fornia Legislature have already been issued as follows: Report on Labor Legislation (is- sued April 12, 1911). • Supplementary Report on Labor Legislation (issued May 12, 1911). Bulletins will be issued in the near future, as follows: Report on Constitutional Amend- ments (to be voted upon at the special election to be held on Oct. 10, 1911). The Anti-Injunction Bill and rea- sons why it should be enacted at the next session of our Legislature. INTRODUCTORY. The New Employers’ Liability and Employees’ Voluntary Compensation Law of California is, as the title implies, a combined liability and ' compensa- tion act. Its salient features are as follows: 1. ' Increasing- the liability of the employer for injury or death resulting therefrom, suffered by an employee in the course of the employment and through the fault or negligence of the employer or of a person for whose conduct he is held responsible, by the removal of certain customary defenses. 2. Providing for automatic compensation in cases of accident regardless of fault or negligence of either party. r c 6 p tJr d o FEATURES OF COMPENSATION LAW. In setting forth the principal features of the compensation law, the aim has been to describe the law and its provisions in simple language by elimi- hating as far as possible all legal terms and phrases. It will be to the advantage of all workingmen and women of California to familiarize themselves with certain phases of the law, before it goes into effect on September 1, 1911. The following is an analysis of the compensation law: (a) To be bound by the compensation plan in settling for an accident, the employer must have made a declaration of his willingness to adopt said plan before the accident occurs. The employer makes this declaration by filing with the Industrial Accident Board a statement to the effect that he accepts the plan of compensation provided for in the Act, for the term of one year from the date of such filing, and thereafter, without further act on his part, for successive terms of one year, unless he shall file a notice of (withdrawal at least sixty days before the expiration of a yearly period. (b) An employee is conclusively presumed to have made his declaration to adopt the plan if he does not give his employer a notice in writing that he prefers not to be subject to the provisions of the Act. Such notice must be given within thirty days after >the employer has filed his statement as before mentioned, or in case the employer has already adopted the plan before the employee enters his service the notice must be given at the time such employee enters into his contract of hire with the employer. In any event the notice must be given before the accident occurs. (c) Employees of the State, or of any of its municipal or public cor- porations, and those who are not to be classed as elective or appointive officials for terras of one or more years, are subject to the plan of com- pensation without the right to make a preference to the contrary. (d) The employer is bound to the compensation scheme in all cases after he has made his election, but the employee in case of gross personal negligence on the part of the employer is not -bound by his election and can bring his suit under the general liability law so as to recover increased and exemplary damages. 36580 (e) To charge the employer with liability under the plan of compensa- tion he must be notified of the accident. Such notice must be in writing, stating the name and the address of the person injured, the time and the place where the accident occurred, and the nature of the injury, and signed by the person injured or some one in his behalf, or in case of his death, by a dependent or by some one in his behalf. Service of the notice is made upon the employer by delivering to and leaving with hirm a copy of such notice, or by mailing to him by registered mail a copy thereof in a sealed and posted envelope addressed to him at his last known place of business or residence. (It is of the utmost importance to comply fully with the require- ments of the Act in the giving of this notice, as courts uniformly construe strictly and according to the letter similar requirements in other statutes, holding such as conditions that must be fulfilled before they will enforce a right that is conferred by statute and not recognized by the common law.) (f) The compensation for an injury will be as follows: First — Medical or surgical aid, not to exceed one hundred dollars or for a greater period than ninety days. Second — Pecuniary weekly benefits if the disability lasts more than one week. In case of total disability the employee will receive 65 per cent of his average weekly wages, unless a nurse is required, in which case he receives 100 per cent. In case of partial disability the employee will receive 65 per cent of the weekly loss in wages. The aggregate benefits for a single injury can not exceed three times the average annual earnings of the employee. No benefit is paid for the first week’s disability, and no benefits will be paid beyond fifteen years after the accident occurred. Average annual earnings are computed according to certain rules, but shall not be taken at less than $333.33, nor more than $1666.66. In case of death the employer shall pay a sum which added to the benefits paid would equal three times the average annual earnings, but in no case less than $1000 or more than $5000; this death benefit is to go to total dependents, that is, a wife, a dependent husband, or children under eighteen years. Partial dependents are also provided for in proportion to their dependence upon the deceased. In case there is no person dependent upon the deceased the employer pays only the funeral expenses not to exceed $100. (g) The injured employee shall be subject to examination from time to time by a regular practicing physician, provided and paid for by the em- ployer, likewise from time to time by a physician selected by the Industrial Accident Board, or any member or examiner thereof. If the employee re- fuses to submit to such examination after a written request from the em- ployer, his right to compensation will be suspended so l6ng as he refuses, and if still refusing after direction by the Board, his weekly benefits will be barred during the period of refusal. (h) For the settlement of all disputes that may arise under the Act there is provided an Industrial Accident Board consisting of three members 4 who are to be appointed by the governor, at first for two, three and four years, respectively, and thereafter for terms of four years. Fifty thousand dollars has been appropriated for the expenses of the Board, including sal- aries at $3,600 per year for each member. The office of the Board will be at San Francisco. (i) The awards of the Board may be entered by the Superior Courts as judgments therein, and the Superior Court is given the power to review all cases, to set aside awards, and send them back for a new trial. Right of appeal to the Supreme Court is given. All cases before the Board and the courts are to be given a speedy hearing and decision. COMMENT ON COMPENSATION LAW. The object of this law is, so far as it is possible under the constitution of this State, to place the burden of industrial accidents upon each particular industry instead of upon the injured person, his family, or private or public charity as is generally the case under present conditions. This object is sought to be accomplished by so increasing the employer’s liability for acci- dents and subjecting him with greater certainty to the payment of damages therefor, that to escape heavy and indefinite verdicts he will be induced vol- untarily to accept the automatic compensation plan. Both the employer and the employee derive distinct advantages under this system that will appeal to them. The employer will know more accurately what it will cost him to care for his injured employees, besides having the satisfaction that he is fulfilling his duties to those who are aiding him in his enterprise and risk life and limb to promote his financial interests. He can protect himself better by way of insurance, or by charging the cost of compensating injured employees to the up-keep of his establishment and adding it to the prices of the commodities or services he furnishes his customers. The burden, thus, is borne directly by the industry and is ultimately distributed upon the com- munity at large. The employee will receive the benefits regularly like ordi- nary weekly wages, and the aid will come at a time when most needed and appreciated. Both sides will avoid costly and protracted litigation, which in the case of the employee often means the loss of evidence and all chance of recovery; and even when the employee recovers after years of delay he must divide the proceeds with his lawyer, so that practically he obtains but little while his employer looses heavily for the benefit mostly of people not im- mediately concerned. In the last eleven years, it was estimated by the New York commission, that out of more than one hundred million dollars paid on account of accidents by employers only about thirty millions were dis- bursed to injured employees. . Seventy millions went to lawyers and to in- surance companies for assuming and contesting the employers’ liabilities. And as the employees who did recover damages had to share their receipts of thirty millions with their lawyers, it is easy to comprehend what an enormous waste to the parties immediately concerned is entailed under a D system of general liability without any system of fixed compensation even where such liability is of the meagre quality prevailing in most States. CHANGE IN EMPLOYERS’ LIABILITY LAW. The first section of the Act contains the provisions relating to employ- ers’ liability in general, and reads as follows: Section 1. In any action to recover damages for a personal injury sustained within this State by an employee while engaged „ in the line of his duty or the course of his employment as such , or for death re- sulting from personal injury so sustained , in which recovery is sought upon the ground of zvant of ordinary or reasonable care of the em- ployer, or of any officer, agent or servant of the employer, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contribiftory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negli- gence attributable to such employee, and it shall be conclusively pre- sumed that such employee 'was not guilty of contributory negligence in any case where the violation of any statute enacted for the safety of employees contributed to such employee s injury; and it shall not be a defense : (1) That the employee either expressly or impliedly assumed the risk of the hazard complained of. (2) That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant. The second section provides merely that the employer can not evade his liability by any contract, rule or regulation, contrary to the provisions of the 'first section. The third section lays down a special liability on all employers who accept the compensation plan, and provides that such liability shall cover all accidents irrespective of fault of either side, except when the injury is due to the wilful misconduct of the employee himself. The part of the Act which deals with employers’ liability in general is compulsory because it operates in all cases where damages may be awarded by a jury and where the claimant is not entitled to or bound by the auto- matic compensation plan a-s heretofore described. The part relating to compensations is voluntary in character because it operates only in such cases where before the accident happens, both the employer and the- em- ployee have consented in the manner heretofore described in sub-sections a, b and c, to be bound by the plan of compensation. This voluntary feature of the law saves it from many constitutional objections that are held or pre- 6 sinned to invalidate compulsory compensation laws enacted or proposed in other States. The ground for this distinction is that in law, parties may waive or relinquish constitutional rights designed for their own protection. In order to better understand the nature of the changes in employers’ liability effected by the first section of the new law, it is necessary to com- pare it with section 1970 of the Civil Code which hitherto chiefly controlled such liability in this State. Section 1970 of the code may be described simply as a statutory enact- ment declaratory of the common law as adjudicated in some of the leading States of the Union with respect to employers’ liability. Notwithstanding that this section has been amended on several occasions at the demand of, and in the interest of labor, it preserved most of the original rigor of the common law and favored unduly the employer by permitting him to plead the several defenses or rules of law laid down by the judiciary to exempt him from liability for injuries to his employees. This section of the code thus permitted all the customary defenses, among which may be mentioned the rules relating to fellow servants, assumption of risk, contributory negli- gence, and volenti non fit injuria (a rule based on the maxim that ‘‘he suffers no injury who consents to it”). The only mitigation in the severity of the common law made by the Legislature was with respect to the fellow servant rule. That rule was first promulgated in England in 1837, in the case of Priestly v. Fowler, and pre- vented an employee from obtaining any compensation if the injury was due to the fault or negligence of a fellow employee. The courts of this country eagerly adopted and extended this rule so that it came to cover servants of every character, of every department of a common employment, and regard- less of circumstances whether such servants ever knew or had ever met one another before the accident, or were working at places miles away from each other at the time of the accident. The absurdity and injustice of such adjudications led early to the promulgation by more humane judges of numerous exceptions, so that this section was amended to make the em- ployer liable for the fault or negligence of a superior servant or a servant having the right to control or direct the services of the injured employee; also for fault or negligence of a servant employed in a different department, or employed upon a machine, railroad train, switch signal point, or other appliance than that upon which the injured employee is employed. Excep- tion to the fellow servant rule was made also where a co-employee was charged with dispatching trains, or transmitting telegraphic or telephonic orders upon any railroad, or in the operation of any mine, factory, machine shop or other industrial establishment. The first section of the new law in effect on Sept. 1, 1911, abolishes entirely the fellow servant rule and the defense known as assumption of risk. The defense known as contributory negligence is mitigated in impor- tant respects. Contributory negligence' is where negligence both on the part of the employer and of the employee contributes to an accident. At 7 Common law and in this State up till now contributory negligence of the employee bars recovery. The new section gives- a right of action not in all cases but at least where it can be shown that the contributory negli- gence of the employee was slight and that of the employer gross in com- parison, when damages are to be awarded by the jury in proportion to the amount of negligence shown. Furthermore, the defense of contributory negligence is taken away from the employer entirely where the accident is caused through the neglect of the employer to observe a statute enacted for tjhe safety of the employees. In dealing with the change made by the first section with respect to the rule of assumed risk, it is somewhat difficult in the absence of judicial determination, which no doubt will be forthcoming soon, to express an ex- planation that will be entirely satisfactory to all that have so far looked into the matter, as opinions will vary with different minds attaching varying degrees of weight to the many conflicting principles involved in the question. VOTE FOR SENATE CONSTITUTIONAL AMENDMENT NO. 32. As a whole the new liability law, defective though it may be in many respects, is a great step in advance towards the goal of establishing com- plete liability of employers for accidents occurring in their respective in- dustries. It is to be hoped that Senate Constitutional Amendment, No. 32, authorizing the Legislature to enact a compulsory compensation law, will be adopted at the Special Election to be held on October 10, 1911. Our next Legislature will then be in a position to enact a more complete lia- bility law and a compensation law of a compulsory nature, either on present lines or by the adoption of some system of insurance conducted by the State. With this end in view all our members and friends are earnestly urged to support and vote for Senate Constitutional Amendment, No. 32. Issued by California State Federation of Labor, San Francisco, June 15, 1911.