Reason for abolishing the common-law defenses compensation principle, the common-law defenses of assumption of risk and negligence of fellow servant were abolished and the defense of contributory negligence was greatly modified in actions by employés against him for personal injuries due to negligence. Many of the other States followed the example of New Jersey. Recently several Commonwealths have adopted constitutional amendments permitting the Legislature to enact compulsory workmen's compensation statutes. Where these constitutional amendments have been adopted, the Legislature may enact compulsory compensation laws and is not driven to the necessity of taking this means of compelling employers to adopt the compensation principle. Only a few States have adopted such constitutional amendments thus far. In many of them the expedient is still employed of forcing employers to adopt the compensation principle by abolishing their common-law defenses. In some of the statutes the question whether or not the employé has elected to accept or refuse compensation has a bearing on the subject. Some of the acts provide that if the employer elects to adopt the compensation principle and an employé of such an employer refuses to accept compensation in lieu of damages, then in any action by such an employé the employer may have the benefit of the common-law defenses. The statutes are not uniform, however. In some of them the defenses are absolutely abolished. In such cases, if the statute is elective, the employé may elect to refuse compensation and sue for damages and still the employer is deprived of the privilege of interposing the common-law defenses. In the following pages the question is discussed under the title of each State, showing exactly what the law is in the several Commonwealths at the present time. While compensation is paid irrespective of the negligence of the employer there are still certain defenses which are applicable to the purely compensation features of the stat Arizona utes. Thus it is usually provided that compensation shall be refused when the injury is intentionally inflicted. The same result follows, according to some of the acts, if it was caused by intoxication or wilful misconduct. Such defenses are discussed in their appropriate places. The present chapter deals only with the abolition of the so-called common-law defenses in actions for damages when employers or employés are, for any reason, not bound by the compensation features of the statute which governs their relations. ARTICLE B-SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA The workmen's compensation feature of the Arizona statute is compulsory in form. It is not necessary, therefore, to abolish the common-law defenses as an inducement to compel employers to adopt the compensation principle. The subject is complicated somewhat in Arizona, however, by the fact that there are two general statutes governing the relation of employers and employés which must necessarily be read together. The Workmen's Compensation Act proper, which is Chapter VII of the codification of the Laws of 1913, relating to Employer and Employé, provides that employers in certain specified trades shall pay compensation to their employés according to a schedule contained in that chapter. By Section 68 of Chapter VII, it is further provided that, "In case such employé or his personal representative shall refuse to settle for such compensation (as provided in Section 8 of Article XVIII of the State Constitution), and chooses to retain the right to sue said employer (as provided in any law provided for in Section 7, Article XVIII of the State Constitution) he may so refuse to settle and may retain said right." Therefore, the above section gives the employé the right to elect, after the accident, whether he will claim under the compensation law or will sue for damages under the Em Arizona ployers' Liability Act, which is Chapter VI of the revision of 1913. Of course, if he accepts compensation no question of common-law defenses arises. But by Chapter VI of the revision of 1913, relating to Employer and Employé, the employé may sue the employer for unlimited damages in all cases where the employer is engaged in so-called hazardous occupations specified in this Chapter. The so-called hazardous occupations specified in Chapter VI are exactly the same hazardous occupations that are specified in Chapter VII, which latter chapter is the Compensation Act proper. According to the provisions of Chapter VI the right of action exists after a death or injury "caused by any accident due to a condition or conditions of such occupation, of any employé in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employé shall not have been caused from the negligence of the employé killed or injured." From the foregoing it appears that any employé may refuse to accept the compensation principle and sue under the Employers' Liability Act, and while the employer can set up the defenses of contributory negligence and assumption of risk these defenses are so strictly regulated in Section 61 of Chapter VI as to be of little value to the employer. The section provides: "In all actions hereafter brought against any such employer under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to any employé, or where such injuries have resulted in his death, the question whether the employé may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times, regardless of the state of the evidence relating thereto, be left to the jury, as provided in Sec. 5, of Article XVIII of the State Constitution; provided however, that in all actions brought against any employer, under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé Arizona may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé." While the section last above quoted speaks of the question of whether or not the employé "assumed the risk" there is nothing else in the statute that would indicate that assumption of risk is a defense in any case, although there is such a provision in the Constitution.1 Section 57 of Chapter VI provides that the employer shall pay damages in all cases except where the injury or death is caused by the negligence of the employé killed or injured. It would seem, therefore, that the defense of contributory negligence is never a complete defense, but only operates to diminish the award of damages in such proportion as the jury may determine; that the defense of assumption of risk is left to the jury in all cases and that the defense of negligence of a fellow servant is completely abolished. These rules apply to all actions for damages for personal injuries caused by negligence by an employé against an employer whether or not the parties are engaged in the so-called hazardous employments specified in Chapters VI and VII. Sections 4, 5, 6, 7 and 8 of Article XVIII of the Constitution of Arizona provide as follows: "Sec. 4. The common-law doctrine of fellow servant, so far as it affects the liability of a master for injuries to his servant resulting from the acts or omissions of any other servant or servants of the common master is forever abrogated. "Sec. 5. The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. "Sec. 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation. "Sec. 7. To protect the safety of employés in all hazardous 1 See below. California occupations, in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry the Legislature shall enact an Employer's Liability law, by the terms of which any employer, whether individual, association, or corporation shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employé in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employé shall not have been caused by the negligence of the employé killed or injured. "Sec. 8. The Legislature shall enact a Workmen's Compulsory Compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the Legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employé, or employés, to exercise due care, or to comply with any law affecting such employment; Provided, that it shall be optional with said employé to settle for such compensation, or retain the right to sue said employer as provided by this Constitution." CALIFORNIA The new compensation act (L. 1913, c. 176), becoming effective Jan. 1, 1914, is a compulsory workmen's compensation law as to all employers and employés except those excluded by § 14, and an elective law as to the occupations specified in § 14. The manner of electing to adopt the compensation principle by those in the excluded occupations is specified in § 87. Where both employer and employé have adopted the compensation principle the right to demand compensation is |