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Defenses

abolished.

Proviso.

Employments exempted.

Remedy exclusive.

TEXAS.

ACTS OF 1913.

CHAPTER 179.-Compensation of workmen for injuries.

PART I.

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

1. That the employee was guilty of contributory negligence; but in such event the damages shall be diminished in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence where the violation by such employer of any statute enacted for the safety of the employee contributed to the injury or death of such employee.

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.

4. Provided, however, 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 or for death resulting from personal injuries sustained by domestic servants, farm laborers, nor to the employees of any person, firm or corporation operating any railway as a common carrier, nor to laborers engaged in working for a cotton gin, nor to the employees of any person, firm or corporation having in his or their employ not more than five employees.

SEC. 3. The employees of a subscriber shall have no right of action against their employer for damages for personal injuries and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employers for damages for injuries resulting in death, but such employees, and their representatives and beneficiaries shall look for compensation solely to the Texas Employees Insurance Association as the same is hereinafter provided for: Provided, That all compensation allowed under the succeeding sections herein, Benefits ex- shall be exempt from garnishment, attachment and all other suits or claims, as are current wages now exempted by law.

empt.

Employees of nonsubscribers.

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SEC. 4. Employees whose employers are not at the time of injury subscribers to said association and the representatives and beneficiaries of deceased employees who at the time of injury were working for nonsubscribing employers cannot 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 and heirs, or such of them as there may be, of any deceased employee whose death is occasioned by homicide, through the willful act or omission or gross negligence of any person, firm or corporation, the employer of such employee at the time of the injury causing the death of the latter, and in all cases where exemplary damages are sought under this section, in case the injured party has already been awarded actual damages by the board herein provided, said fact and said amount so received shall be made known to the court or jury trying said cause for exemplary damages; and on the issue for exemplary damages he shall have the same defenses as under the existing law.

SEC. 6. No compensation shall be paid under this act for an injury Waiting time. 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 on the eighth day after injury.

benefits.

SEC. 7. During the first week of the injury the association shall Medical, furnish reasonable medical aid, hospital services, and medicines when needed, and if it does not furnish these immediately as and when needed, it shall repay all sums reasonably paid or incurred for same: Provided, Reasonable notice of injury shall be given to the said association, and this provision requiring notice shall apply to all subsequent sections of this act providing for compensation.

for death.

etc.,

SEC. 8. If death should result from the injury, the association here- Compensation inafter created, shall pay to the legal beneficiary of the deceased employee a weekly payment equal to 60 per cent of his average weekly wages, but not more than $15.00 nor less than $5.00 a week, for a period of three hundred and sixty weeks from the date of injury: Provided, That the compensation herein provided for shall be distributed according to the law providing for the distribution of other property of deceased.

SEC. 9. If the deceased employee leaves no legal beneficiaries or creditors, the association shall pay all expenses incident to his last sickness, and in addition a funeral benefit not to exceed one hundred dollars: Provided, Where the deceased leaves no beneficiaries as provided berein, but leaves creditors, the association shall be liable to such creditors for an amount not exceeding the amount that would otherwise have been due beneficiaries, which amount paid shall not exceed amount due such creditor or creditors.

No dependents.

SEC. 10. While the incapacity for work resulting from the injury is Total disability. total, the association shall pay the injured employee a compensation equal to 60 per cent of his average weekly wages but not more than $15.00 nor less than $5.00 a week, and in no case shall the period covered by such compensation be greater than four hundred weeks.

SEC. 11. While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to 60 per cent of the difference between his average weekly wages before the injury and the average weekly wages he is able to earn thereafter, but in no case to be more than $15.00 a week; and the period covered by such compensation to be in no case greater than three hundred weeks.

Partial disability.

ries.

SEC. 12. In case of the following specified injuries the amounts here-Specific inju inafter named shall be paid by the association in addition to all other compensation:

(a) For the loss by severance of both hands, at or above the wrists, or of both feet at or above the ankle, or the loss of one hand and one foot, or the reduction to one-tenth of the normal vision in both eyes, 60 per cent of the average weekly wages of the injured employee, but not more than $15.00 nor less than $5.00 a week for a period of one hundred weeks. (b) For the loss by severance of either hand at or above the wrist, or either foot above the ankle, or the reduction to one-tenth of normal vision in either eye, 60 per cent of the average weekly wages of the injured employee, but not more than $15.00 nor less than $5.00 a week, for a period of fifty weeks. (c) For the loss by severance at or above the second joint of two or more fingers, including thumbs, and toes, 60 per cent of the average weekly wages of the injured employee, but not more than $15.00 nor less than $5.00 a week, for a period of twenty-five weeks. (d) For the loss by severance of at least one joint of a finger, thumb or toe, 60 per cent of the average weekly wages of the injured employee, but not more than $15.00 nor less than $5.00 a week, for a period of twelve weeks.

SEC. 13. If an injured employee is mentally incompetent or is a minor Incompetence. at the time when any rights or privileges accrued to him under this act, his guardian or next friend may in his behalf claim and exercise such rights and privileges.

SEC. 14. No agreement by an employee to waive his rights to compensation under this act shall be valid.

SEC. 15. In cases where death or total permanent disability results from an injury, the liability of the association may be redeemed by pay

Waivers.

Lump-sum

payments.

Survival of

action.

Industrial cident board.

Membership.

Salaries, etc.

Powers.

nations.

ac

ment of a lump sum by agreement of the parties thereto, subject to the approval of the "Industrial Accident Board" hereinafter created.

SEC. 16. In all cases of injury resulting in death, where such injury was received in the course of employment, cause of action shall survive.

PART II.

SECTION 1. There shall be an "Industrial Accident Board" consisting of three members, and the same is hereby created to be appointed by the governor, one of whom shall be designated as chairman, and the term of office shall be two years for members of the board.

SEC. 2. One member of the Industrial Accident Board shall be at the time of his appointment, an employer of labor in some industry or business covered by this act; one shall be at the time of his appointment, a wage earner employed in some industry or business covered by this act, and the third member shall be, at the time of his appointment, a practicing attorney of recognized ability, said member to act in the capacity of legal adviser to the board in addition to his other duties as a member thereof.

SEC. 3. The salaries and expenses of the Industrial Accident Board shall be paid by the State. The salary of the chairman shall be three thousand dollars a year, and the salaries of the other members of the board shall be two thousand and five hundred dollars a year each. The board may appoint a secretary at a salary of not more than two thousand dollars a year and may remove him at any time, furnishing him, upon demand, with a statement of the cause of his removal. It shall also be allowed an annual sum not exceeding five thousand dollars a year, for clerical services, traveling and other necessary expenses. The board shall be provided suitable offices in the capitol or some other convenient building in the City of Austin, where its records shall be kept.

SEC. 4. The board may make rules not inconsistent with this act for carrying out and enforcing its provisions, and may require any employee claiming to have sustained injury, to submit himself for examination before such board or some one acting under its authority at some reasonable time and place within the State and as often as may be reasonably ordered by the board, to a physician or physicians auMedical exami- thorized to practice under the laws of this State. If the employee requests, he shall be entitled to have a physician or physicians of his own selection present to participate in such examination. Refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal. When a right to compensation is thus suspended no compensation shall be payable in respect of the period of suspension. Process and procedure shall be as summary as may be under this act. The board or any member thereof shall have power to subpoena witnesses, administer oaths, inquire into matters of fact, and to examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute. All rulings or decisions of the board relating to disputed claims shall be based upon questions of fact, and in accord with the provisions of this act.

Procedure.

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SEC. 4a. No proceedings for compensation for injury under this act, shall be maintained unless a notice of the injury shall have been given to the association or subscriber, as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.

SEC. 5. All questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise herein provided, be determined by the Industrial Accident Board. Any interested party who is not willing, and does not consent to abide by the final ruling and decision of said board on any disputed claim may sue on such claim or may require suit to be brought thereon in some court of competent jurisdiction, and the board shall proceed no further toward the adjustment of such claim: Provided, however, That when

ever any such suit is brought, the rights and liabilities of the parties thereto shall be determined by the provisions of this act, and the suit of the injured employee, or persons suing on account of the death of such employee, shall be against the association, if the employer of such injured or deceased employee is at the time of such injury or death a subscriber, as defined in this act, in which case the recovery shall not exceed the maximum compensation allowed under the provisions of this act, and the court shall determine the issues in such cause instead of said board.

Employees of

SEC. 6. If a subscriber enters into a contract, written or oral, with an independent contractor to do such subscriber's work, or if a contractor contractors. enters into a contract with a subcontractor to do all or any part of the work comprised in such contract with the subscriber, and the association would, if such work was executed by employees immediately employed by the subscriber, be liable to pay compensation under this act to such employees, the association shall pay to such employees any compensation which would be payable to them under this act if the independent or subcontractors were subscribers. The association shall, however, be entitled to recover indemnity from any other persons who would have been liable to such employees independently of this section, and if the association has paid compensation under the terms of this section, it may enforce in the name of the employees or in its own name and for its own benefit, the liability of such other persons. This section shall not apply to independent or subcontractors or any contract which is merely auxiliary and incidental to, and is no part of or process in, the trade or business carried on by the subscriber.

SEC. 7. Every employer shall hereafter keep a record of all injuries, Injuries to be fatal or otherwise, received by his employees in the course of their reported. employment. Within eight days after the occurrence of an accident resulting in a personal injury to an employee, a report thereof shall be made in writing to the Industrial Accident Board on blanks to be procured from the board for that purpose. Upon the termination of the disability of the injured employee, or if such disability extends beyond a period of sixty days, the employer shall make a supplemental report upon blanks to be procured for that purpose. The said report shall contain the name and nature of the business of the employer, the location of the establishment, the name, age, sex and occupation of the injured employee, and shall state the date and hour of the accident, and the nature and cause of injury, and such other information as the board may require. Any employer failing or refusing to make any such report within the time herein provided or failing or refusing to give to said board any information demanded by said board relating to any injury to an employee, which information is in the possession of, or could have been ascertained by the employer by the use of reasonable diligence, shall be liable for and shall pay to the State of Texas a penalty of not more than one thousand ($1,000.00) dollars for each and every offense, the same to be recovered in a suit to be instituted and prosecuted by the attorney general, or under his direction, either in the district court of Travis County, or in the county in which any defendant resides, at the option of the said attorney general.

PART III.

surance associa tion.

SECTION 1. The "Texas Employers' Insurance Association" is Employers' inhereby created a body corporate with the powers provided in this act and with all the general corporate powers incident thereto.

SEC. 2. The governor shall appoint a board of directors of the association consisting of twelve members, who shall serve for a term of one year, or until their successors are elected by ballot by the subscribers at such time and for such term as the by-laws shall provide.

SEC. 3. Until the first meeting of the subscribers, the board of directors shall have and exercise all of the powers of the subscribers, and may adopt by-laws not inconsistent with the provisions of this act, which shall be in effect until amended or repealed by the subscribers. SEC. 4. The board of directors shall annually choose by ballot a president who shall be a member of the board, a secretary, a treasurer, and such other officers as the by-laws may provide.

Directors.

Powers.

Officers.

Quorum.

Subscribers.

First meeting.

Votes.

When policies may issue.

Data to be filed.

SEC. 5, Seven or more of the directors shall constitute a quorum for the transaction of business. Vacancies in any office may be filled in such manner as the by-laws shall provide.

SEC. 6. Any employer of labor in the State may become a subscriber excepting as provided in Part I, section 2 of this act.

SEC. 7. The board of directors shall, within thirty days of the subscription of twenty-five employers, call the first meeting of the subscribers by a notice in writing mailed to each subscriber at his residence or place of business not less than ten days before the date fixed for the meeting.

SEC. 8. In any meeting of the subscribers each subscriber shall have one vote, and if a subscriber has five hundred employees to whom the association is bound to pay compensation, he shall be entitled to two votes and he shall be entitled to one additional vote for each additional five hundred employees to whom the association is bound to pay compensation, but no subscriber shall cast, by his own right, or by right of proxy, more than ten votes.

SEC. 9. No policy shall be issued by the association until not less than fifty employers have subscribed, who have not less than two thousand employees to whom the association may be bound to pay compensation.

SEC. 10. No policy shall be issued by the association until a list of the subscribers, with the number of employees of each; together with such other information as the commissioner of banking and insurance may require, shall have been filed with the department of banking and insurance, nor until the president and secretary of the association shall have certified under oath that every subscription on the list so filed is genuine and made with an agreement with every subscriber that he will take the policies so subscribed for by him within thirty days of the granting of a license to the association by the commissioner of banking and insurance to issue policies.

Issue of policies SEC. 11. If the number of subscribers falls below fifty or the number suspended, when. of employees to whom the association may be bound to pay compensation falls below two thousand, no further policies shall be issued until other employers have subscribed, who, together with existing subscribers, amount to not less than fifty, who have not less than two thousand employees, to whom the association may be bound to pay compensation, said subscriptions to be subject to the provisions of the preceding section.

License.

Classification.

Contingent liability.

Assessments.

Dividends.

SEC. 12. Upon the filing of the certificates provided for in the two preceding sections the commissioner of banking and insurance shall make such investigations as he may deem proper and if his findings warrant it, grant a license to the association to issue policies.

SEC. 13. The board of directors shall distribute the subscribers into groups in accordance with the nature of the business and the degree of hazard incident thereto. Subscribers within each group shall annually pay in cash, such premiums as may be required to pay the compensation herein provided for the injuries which may occur in that year.

SEC. 14. The association may in its by-laws and policies fix the mutual contingent liability of the subscribers for the payment of losses and expenses not provided for by its cash fund, but such contingent liability of a subscriber shall not be less than an amount equal to and in addition to the cash premium.

SEC. 15. If the association is not possessed of cash funds above its insured premiums sufficient for the payment of incurred losses and expenses, it shall make an assessment for the amount needed to pay such losses and expenses upon the subscribers liable to assessment therefor in proportion to their several liability. Every subscriber shall pay his proportional part of any assessment which may be levied by the association, in accordance with the laws and his contract, on account of injuries sustained and expenses incurred while he is a subscriber. Sec. 16. The board of directors may from time to time, by vote fix the amount to be paid as dividends upon the policies expiring during each year after retaining sums sufficient to pay all compensation which may be payable on account of injuries sustained and expenses incurred. All premiums, assessments and dividends shall be fixed by and for

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