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which his employe should work and reasonably safe tools with which to work. If the employer did not furuiish such a place and tools he was negligent and the enploye was entitled to recover.
2. That on the part of the employe there was an implied contract between him and his employer that he would use due care in performing his work and if he did not and his negligence contributed to the cause of his injury he could not recover.
3. By taking away the defense of the assumption of risk when assumed contract of employment that ie assumed the risks in continuing to work with defective tools in a dangerous place after he knew that the tools were defective and the place was dangerous, and would not have a cause of action against his employer for an injury occurring after he knew that the place and tools were dangerous and defective, also that it was a part of the contract of enployment on the part of the employe that in case he was injured, by the negligence of a fellow servant and such negligence contributed to the injury that he assumed the risks and could not recover.
Seventeen states, Colorado, Georgia, Missouri, etc., have abolished the fellow servant defense.
Many states, California, Oregon, Ohio, have modified all of the common law defenses by statute or by decision along the following lines :
1. Adopting the doctrine of compensative negligence.
2. Changing the burden of proof of contributory negligence from the plaintiff to the defendant.
3. By taking away the defense of the assumption of risk when assumed the injury was caused by the fault or negligence of the employer.
For the same reason the legislature has a right to take away all of the defenses and the cause of action based upon fault or implied duty of the cinployer especially when the law would provide a more uniform and adequate remedy for the same cause oj action whether based upon fault or not.
4. For the purpose of the justification of the proposed Code, it is sufficient that the Supreme Court of the United States on January 3, 1911, in the Depositors' Guarantee Fund case of Oklahoma, Kansas and Nebraska was held:
That it is within the police power of the state when there is an emergency threatening the peace, health and safety of its inhabitants to create a State Insurance Fund by taxing the State Banks 1% of the deposits to guarantee the payment in full to each depositor of every state bank the entire amount due him in case one bank becomes insolvent.
For the same reason and on the same principles it is within the police power of the State to create a State Insurance Fund to compensate workmen for 60% of their loss of earning power arising out of Industrial Accidents in the due course of their employment by taxing the industries in which the accident occurs.
JAMES HARRINGTON BOYD,
Chairman, Toledo, Ohio, February 7, 1911.
MINORITY REPORT OF THE EMPLOYERS'
To the General Assembly of the State of Ohio:
Finding myself unable, in many respects, to concur in the bill prepared and submitted by a majority of the Commission, I herewith submit a bill which embodies my views of a measure such as should be adopted by the General Assembly.
It provides for the creation of a state insurance fund for the benefit of injured employes of employers who contribute to the fund, and of the dependents of such injured employes in case of death. It provides for the administration of the fund by a state board to be appointed by the governor.
The injured employe, or dependents, in case of death, may accept the benefits or compensation provided from the fund, or pursue their remedies as heretofore, against the employer; and in the latter event, the employer who pays a judgment, in case of recovery against him, is to be re-imbursed from the state fund to the extent of such judgment not in excess of $3,400.
Under it, all moneys contributed to the fund by insured employers will go, without waste, to the injured employes and their dependents.
The machinery provided for the administration of the fund is believed to be free from complications and constitutional objections.
In cases of injury, all questions of negligence and the like are eliminated, except the sole one of whether or not the injury was purposely self inflicted.
• I also recommend that Section 6242 and 6245-1 be amended to read as follows:
Sec. 6242. That in all actions brought by an employe to recover from an employer for personal injury suffered by such employe or in an action by the personal representative for death resulting to such an employe from such personal injury, while in the employ of such employer, the fact that such injury was caused or was contributed to by any other person employed by the same employer, whether or not such other person, causing or contributing to such injury be one who has authority over such injured employe and over other employes of such employer, shall not be a defense in such action.
Sec. 6245-1. That in all such actions hereafter brought, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence is slight and the negligence of the employer is greater * in comparison. But the damages shall be diminished by the jury in proportion to the
amount of negligence attributable to such employe. Provided that no such employe who may be injured or killed shall be held in any degree to have been guilty of contributory negligence in any case where the violation of such employer of any statute or law of the state, or United States enacted for the safety of employes in any way contributed to the injury or death of such employe. tions of negligence, contributory negligence, and assumption of risk, shall be for the jury, under the instruction of the court.
I also recommend that section 1028 and 1030 of the Revised Code be amended to read as follows:
Sec. 1028. Whoever being a person, firm or corporation, fails to comply with any provisions of the preceding section, or fails to comply with such orders for changes as are issued by the chief inspector, within thirty days thereafter, shall be fined not less than one hundred dollars or more than three hundred dollars for each offense. All fines collected under this section shall inure to the benefit of the county hospital for tuberculosis. In prosecution for violation of this section by or under the directions of the chief inspector, such inspector shall not be required to give security for costs or adjudged to pay any costs. In case where the accused is acquitted, the costs shall be paid from the treasury of the county in which such proceedings were brought.
Sec. 1030. Whoever being the owner or operator of a shop or factory, violates any provisions of the preceding sections shall be fined for the first offense not less than two hundred dollars, nor more than three hundred dollars, and not less than five hundred dollars nor more than one thousand dollars for each subsequent offense.
I recommend that the salaries of the chief inspector, his assistants, district and other inspectors, lady visitors, clerks and stenographers of the department of inspection of workshops and factories and public buildings be increased and that five additional district inspectors be appointed to this department.
W. J. WINANS,
Liability Commission of Ohio.
MINORITY BILL SUBMITTED BY W. J. WINANS.
To create a state insurance fund for the benefit of injured, and the
dependents of killed, employes, and to provide for the administra-
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. There is hereby created a state liability board of awards, to be composed of three members, not more than two of whom shall belong to the same political party, to be appointed by the governor, within thirty days after the passage of this act, one of which members shall be appointed for the term of two years, one member for four years and member for six years, and thereafter as their terms expire the governor shall appoint one member for the term of six years. Vacancies shall be filled by appointment by the governor for the unexpired term, and all appointments shall be upon and with the advice and consent of the senate. One member of suclı board shall be a representative of employers of labor, one a representative of employes, and one an actuary, but the governor may, if he deems the same advisable, make such appointment from any class of citizens.
SECTION 2. Each member of the board shall devote his entire time to the duties of his office and shall not hold any position of trust or profit or engage in any occupation or business interfering or inconsistent with his duty as such menuber, or serve on or under any committee of any political party. SECTION 3.
Each member of the board shall receive an annual salary of five thousand dollars, payable in the same manner as salaries of state officers are paid.
Sec. 4. The board shall be in continuous session and open for the transaction of business during all the business hours of each and every day, excepting Sundays and legal holidays. All sessions shall be open to the public, and shall stand and be adjourned without further notice thereof on its records. All proceedings of the board shall be shown on its record of proceedings, which shall be a public record, and shall contain a record of each case considered, and the award made with respect thereto, and all voting shall be had by the calling of each member's name by the secretary and each vote shall be recorded as cast.
SEC. 5. A majority of the board shall constitute a quorum for the transaction of business, and a vacancy shall not impair the riglit of the remaining members to exercise all the powers of the full board so long as a majority remains. Any investigations, inquiry or hearing which the board is authorized to hold, or undertake, may be held or undertaken by or before any one member of the board. All investigations, inquiries, hearings and decisions of the board, and every order made by a member thereof, when approved and confirmed by a majority of the members, and so shown on its record of proceedings, shall be deemed to be the order of the board.
Sec. 6. The board shall keep and maintain its office in the city of Columbus, and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals and maps. All necessary expenses shall be audited and paid out of the state treasury. The board may hold sessions at any place within the state.
SEC. 7. The board may employ a secretary, actuary, accountants, inspectors, examiners, experts, clerks, stenographers, and other assistants, and fix their compensation. Such employments and compensation shall be first approved by the governor, and shall be paid out of the state treasury. The members of the board, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants that may be employed shall be entitled to receive from the state their actual and necessary expenses while traveling in the business of the board. Such expenses shall be itemized and sworn to by the person who incurred the expense, and allowed by the board.
Sec. 8. The board shall adopt reasonable and proper rules to govern its procedure, regulate and provide for the kind and character of notices, and the services thereof, in cases of accident and injury to employes, the nature and extent of the proofs and evidence, and the method of taking and furnishing the same, to establish the right to benefits of compensation from the state insurance fund, hereinafter provided for, the forms of application of those claiming to be entitled to benefits or compensation therefrom, the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be inade.
SEC. 9. Every employer of labor shall furnish the board, upon request, all information required by it to carry out the purposes of this act. The board or any member thereof, or any person employed by the board for that purpose, shall have the right to examine under oath any employer or officer, agent or employe thereof.
Sec. 10. Every employer of labor receiving from the board any blank with directions to fill the same, shall cause the same to be properly filled out as to answer fully and correctly all questions therein propounded, and if unable to do so shall give good and sufficient reasons for such failure. Answers to such questions shall be verified under oath and returned to the board within the period fixed by the board for such return.
SEC. II. Each member of the board, the secretary and every inspector or examiner appointed by the board shall, for the purposes con