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emplover becomes insolvent or discharged in bankruptcy or otherwise, during the period the policy is in force, if the compensation remains owing.
The insurer must be one authorized by law to conduct such business Insurance carin the State of Minnesota, and authority is hereby granted to all insur- riers. ance companies writing such insurance to include in their policies in addition to the requirements now provided by law the additional requirements, terms and conditions in this section provided.
It shall be lawful for the employer and the workman to agree to carry Cooperative the risks covered by Part 2 of this act in conjunction with other and sch greater risks and providing other and greater benefits such as additional compensation, accident, sickness or old age insurance or benefits, and the fact that such plan involved a contribution by the workman shall not prevent its validity if the employer pays not less than the cost of the insurance of the risks otherwise covered by Part 2 of this act, and workman gets the whole of the additional compensation or benefits.
If the employer shall insure to his employees the payment of the com- Direct liability. pensations provided by Part 2 of this act, in a corporation or association authorized to do business in the State of Minnesota and approved by the insurance commissioner of the State of Minnesota, and if the employer shall post a notice or notices in a conspicuous place or in conspicuous places about his place of employment, stating that he is so insured and stating by whom insured, and if the employer shall further file copy of such notice with the labor commissioner of the State of Minnesota, then, and in such case, any suits or actions brought by an injured employee or his dependents shall be brought directly against the insurer, and the employer or insured shall be released from any further liability:
Provided, That in case of insolvency or bankruptcy of such insurance company the employer shall not be released from liability under the provisions of this act.
The return of any execution upon any judgment of an employee against any such insurance company unsatisfied in whole or in part, shall be conclusive evidence of the insolvency of such insurance company and in case of the adjudication of bankruptcy or insolvency of any such insurance company by any court of competent jurisdiction, proceedings may be brought by the employee against the employer in the first instance or against such employer and insurance company jointly or severally or in any pending proceeding against any insurance company, the employer may be joined at any time after euch adjudication,
SEC. 32. (1) Any person who creates or carries into operation any Avoiding rofraudulent scheme, artifice or device to enable him to execute work sponsibility as
employer. without himself being responsible to the workman for the provisions of this act, shall himself be included in the term "employer, and be subject to all the liabilities of employers under this act. But this section shall not be construed to cover or mean an owner who lets a contract to a contractor in good faith, nor a contractor who, in good faith, lets to a subcontractor a portion of his contract: Provided, however, That no pereon shall be deemed a contractor or subcontractor, so as to make him liable to pay compensation within the meaning of this section, who performs his work upon the employer's premises and with the employer's tools or appliances and under the employer's direction; nor one who does what is commonly known as “piecework," or in any way where the system of employment used merely provides a method of fixing the workman's wages.
(2) Where compensation is claimed from, or proceedings taken Basis for com. against a person under subdivision one of this section, the compensation
pensation. Bhall be calculated with reference to the wage the workman was receiving from the person by whom he was immediately employed at the time of the injury.
(3) The employer shall not be liable or required to pay compensation Injuries caused for injuries due to the acts or omissions of third persons not at the time by th
by third persons. in the service of the employer, nor engaged in the work in which the injury occurs, except as provided in section 33, or under the conditions set forth in section 34(i). Sec. 33. (1) Where an injury or death for which compensation is Alternative pro
ceedings. payable under Part 2 of this act is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of Part 2
of this act, the employee in case of injury or his dependents in case of death, may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under Part 2 of this act, but not against both.
If the employee in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which and the persons to whom the same are payable, shall be as provided for in Part 2 of this act and not otherwise: Provided, That in no case shall such party be liable to any person other than the employee or his dependents
for any damages growing out of or resulting from such injury or death, Subrogation of If the employee or his dependents shall elect to receive compensation employer.
from the employer, then the latter shall be subrogated to the right of the employee or his dependents to recover against such other party, and may bring legal proceedings against such party and recover the aggregate amount of compensation payable by him to such employee, or his dependents hereunder, together with the costs and disbursements of
such action and reasonable attorney's fees expended by him therein. Suits against (2) Where the injury or death for which compensation is payable third persons.
under Part 2 of this act was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party not being subject to the provisions of Part 2 of this act, legal proceedings may be taken by the employee or dependents against such other party to recover damages, notwithstanding the payment by the employer, or his liability to pay compensation hereunder. But in such case, if the action against such other party is brought by the injured employee or in case of his death by his dependents, and judgment is obtained and paid, or settlement is made with such other party, either with or without suit, the employer shall be entitled to deduct from the compensation payable by him, the amount actually received by such employee or dependents: Provided, That if the injured employee or in case of his death his dependents shall agree to receive compensation from the employer or shall institute proceedings to recover the same, or accept from the employer any payment on account of such compensation, such employer shall be subrogated to all the rights of euch employee or dependents and may maintain, or in case an action has already been instituted, may continue the action either in the name of the employee or dependents, or in his own name against such other party for the recovery of damages, but such employer shall nevertheless pay over to the injured employee or dependents all sums collected from such other party by judgment or otherwise in excess of the amount of such compensation payable by the employer under Part 2 of this act, and costs, attorney's fees, and reasonable expenses incurred by such employer in making such collection or enforcing such liability: Prorided, That in no case shall such party be liable to any person other than the employee or his dependents for any damages growing out of or
resulting from such injury or death. Definitions. Sec. 34. Throughout this act the following words and phrases as
used therein shall be considered to have the following meaning respectively, unless the context shall clearly indicate a different meaning in the connection used.
(a) The word “compensation" has been used both in Part 1 and Part 2 of this act to indicate the money benefit to be paid on account of injury or death. Strictly speaking, the benefit which an employee may receive by action at law under Part 1 of this act is damages, and this is indicated in section 1. To avoid confusion, the word “compensation" has been used in both parts of the act, but it should be understood that under Part 1 the compensation by way of damages is determined by an action at law.
(b) “Child” or “children" shall include posthumous children and all other children entitled by law to inherit as children of the deceased.
(c) A dependent child or orphan shall be considered to mean an unmarried child under the age of eighteen years or one over that age, who is physically or mentally incapacitated from earning.
(d) The term "employer" as used herein shall mean every person not excluded by section 8, who employs another to perform a service for hire, and to whom the “employer" directly pays wages, and shall include any person or corporation, copartnership, or association or
group thereof, and shall-include county, village, town, city, school district and other public employers, except the State.
(e) The term “physician" shall include "surgeon," and in either case shall mean one authorized by law to practice his profession within one of the United States and in good standing in his profession at the time.
(1) The term “workman" shall include the plural and all ages and both sexes.
(g) The terms "employee" and "workman" are used interchangeably and have the same meaning throughout this act, and shall be construed to mean:
(1) Every person in the service of a county, city, town, village or school district therein, under any appointment or contract of hire, express or implied, oral or written; but shall not include any official of any county, city, town, village or school district therein, who shall have been elected or appointed for a regular term of office, or to complete the unexpired portion of any regular term.
(2) Every person, not excluded by section 8, in the service of another under any contract of hire, express or implied, oral or written, including aliens and also including minors who are legally permitted to work under the laws of the State, who for the purpose of making election of remedy under this act shall be construed the same, and have the same power of contracting and electing as adult employees.
(h) The word “accident” as used in the phrases “personal injuries due to accident” or “injuries or death caused by accident" in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time, injury to the physical structure of the body.
(i) Personal injuries, etc. — Without otherwise affecting either the meaning or interpretation of the abridged clause, "personal injuries arising out of and in the course of employment,” it is hereby declared:
Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen, and shall not include an injury caused by the act of a third person or follow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee, or because of his employment.
(j) Wherever in this act the singular is used, the plural shall be included; where the masculine gender is used, the feminine and neuter shall be included.
(k) Amputations.-Amputations between the elbow and the wrist shall be considered as the equivalent of the loss of a hand, and amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot.
(1) The labor commissioner, referred to in this act, shall denote the commissioner of labor of the State of Minnesota.
(m) “The court” as used herein shall mean the district court which would have jurisdiction in an ordinary civil case involving a claim for the injuries or death in question, and “the judge" shall mean a judge of said court. (n) As to constitutionality.-In case for any reason any paragraph Questions of
constitutionality. or any provision of this act shall be questioned in any court of last Co resort and shall be held by such court to be unconstitutional or invalid, the same shall not be held to affect any other paragraph or provision of this act, except that parts 1 and 2 are hereby declared to be inseparable, and if either part be declared void or inoperative in an essential part, so that the whole of such part must fall, the other part shall fall with it and not stand alone. Part 1 of this act shall not apply in cases where Part 2 becomes operative in accordance with the provisions thereof, but shall apply in all other cases, and in such cases shall be in extension or modification of the common law.
SEC. 35. All acts or parts of acts inconsistent with the provisions i f Repealer. this act are hereby repealed.
Sec. 36. This act shall take effect from and after the 1st day of Act in effect. October, A. D. 1913.
Approved April 24, 1913.
ACTS OF 1913.
CHAPTER 198.-Employers' liability -- Compensation of workmen for
Damages. SECTION 1. When personal injury is caused to an employee by acci
dent arising out of and in the course of his employment, of which the actual or lawful imputed negligence of the employer is the natural
and proximate cause, he shall receive compensation therefor from his Questions of employer, provided the employee was himself not willfully negligent at negligence.
the time of receiving such injury, and the question of whether the employee was willfully negligent shall be one of fact to be submitted to the jury, subject to the usual powers of the court over verdicts rendered
contrary to the evidence, or to law. Defenses abro. Sec. 2. In all cases brought under Part I of this act it shall not be a gated.
defense (a) that the employee was negligent, unless and except it shall also appear that such negligence was willful, or that the employee was in a state of intoxication; (b) that the injury was caused by the negli gence of a fellow employee; (c) that the employee had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which
grounds of defense are hereby abolished, except as provided in section 4. When abroga- Sec. 3. If an employer subject to the provisions of this act as shown tion operates,
in section 6 elects not to come under Part II hereof, he loses the right to interpose the three defenses above stated in any action brought
against him for personal injury or death of an employee. Defenses a
al- SEC. 4. If an employer becomes subject to Part II of this act, and lowed, when.
the employee does not, then the defenses existing under the laws for Nebraska, other than the provisions of this act, at the time of the personal injury or death of the employee shall be available to the employer in any action brought by the employee or his dependents for personal
injury, or death. D e a th by Sec. 5. The provisions of sections 1, 2, 3 and 4 shall apply to any wrongful act.
claim for the death of any employee arising under chapter 21 of the Compiled Statutes of Nebraska, 1911, and the acts or parts of acts
amendatory thereof, concerning death by wrongful act. To whom act Sec. 6. (1) The provisions of this act shall apply to the State of applies.
Nebraska and every governmental agency created by it, and every employer in this State employing five or more employees, in the regular
trade, business, profession or vocation of such employer. Exemptions. (2) The following are declared not to be hazardous occupations and
not within the provisions of this act: employers of household domestic servants, employers of farm laborers and all employers employing less than five employees, in the regular trade, business, profession or vocation of such employer. Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of Congress and
not within the provisions of this act. Election by (3) Any employer not included in the preceding paragraphs of this exempt persons.
section and the employees of such employer may, by their jointelection, filed with the insurance commissioner, accept the provisions of Part II of this act, and such acceptances shall subject them to the said provisions of Part II hereof to all intents and purposes as if they had been originally included in the terms of subdivision 2 of this section: Provided, however, That either such employer or workmen (prior to accident) shall have the right to waive such election to come under Part II hereof, the procedure being the same as indicated in subdivisions (a)
and (b) of section 12. Burden of Sec. 7. In all actions at law brought pursuant to Part I of this act, proof.
burden of proof to establish willful negligence of the injured employee shall be on the defendant.
Sec. 8. No claim or agreement for legal services or disbursements in , Legal fees not a support of any demand made or suit brought under the provisions of this lien. act shall be an enforceable lien against the amounts to be paid as damages or compensation or be valid or binding in any other respect, unless the same be approved in writing by the judge presiding at the trial, or in case of settlement without trial, by the judge of the district court of the district in which such issue arose. After such approval, if notice in writing be given the defendant of such claim or agreement for legal services and disbursements, the same shall be a lien against any amount thereafter to be paid as damages or compensation: Provided, however, That where the employee's compensation is payable by the employer in periodical installments, the court shall fix, at the time of approval, the proportion of each installment to be paid on account of legal services and disbursements.
SECTION 9. If both employer and employee become subject to Part II Compensation of this act, both shall be bound by the schedule of compensation herein, payable, when. provided, which compensation shall be paid in every case of injury or death caused by accident arising out of and in the course of employment, except accidents caused by, or resulting in any degree from willful negligence, as hereinafter defined, of the employee.
Sec. 10. When employer and employee shall by agreement, express Same subject. or implied, or otherwise as hereinafter provided, accept the provisions of Part II of this act, compensation shall be made for personal injuries to or for the death of such employee by accident arising out of and in the course of his employment, without regard to the negligence of the employer, according to the schedule hereinafter provided, in all cases except when the injury or death is caused by willful negligence on the part of the employee; and the burden of proof of such fact shall be upon the employer.
SEC. 11. Such agreement or the election hereinafter provided for Method to be shall be a surrender by the parties thereto of their rights to any other exclusive. method, form or amount of compensation or determination thereof than as provided in Part II of this act, and an acceptance of all the provisions of Part II of this act, and shall bind the employee himself, and for compensation for his death shall bind his legal representatives, his widow and next of kin, as well as the employer and the legal representatives of a deceased employer, and those conducting the business of the employer during bankruptcy or insolvency.
Sec. 12. In the occupations described in section 6 hereof, and all Presumption contracts of employment made after the taking effect of this act shall as to contracts. be presumed to have been made with reference, and subject to the provisions of Part II hereof, unless otherwise expressly stated in the contract, or unless written or printed notice has been given by either party to the other, as hereinafter provided, that he does not accept the provisions of Part II. Every such employer and every employee is presumed to accept and come under Part II hereof, unless prior to accident he shall signify his election not to accept or be bound by the provisions of Part II. This election not to accept Part II shall be by notice as follows: (a) The employer shall post and thereafter keep continuously posted Rejection
By employer; in a conspicuous place about the place or places where his workmen are employed a written or printed notice of bis election not to be bound by Part II hereof, and shall file a duplicate thereof with the insurance commissioner.
(b) The employee shall give written or printed notice to the employer By employee. of his elertion not to be bound by Part II and shall file a duplicate with proof of service attached thereto with the insurance commissioner.
Sec. 13. An employer who has given notice of his election not to Waiving rejecaccept or be bound by the provisions of Part II hereof, may waive such election at any time, by posting about the place or places where his workmen are employed a written or printed notice setting forth a