Ohio, Washington, Massachusetts, Wisconsin, California, Kansas, Nevada, Arizona and New Hampshire provide for a scheme of workmen's insurance through a common State fund collected and disbursed through a State administrative board. The Wisconsin Workmen's Compensation Act, typical in a general way was enacted in 1911 and upheld in the case of Borgnis vs Falk, reported in Volume 133 North Western Reports (Wisconsin), Page 209. The court, in that case, summarizes the Act as follows: "It creates an administrative board to carry its provisions into effect. It divides all private employers of labor into two classes: (1) Those who elect to come under the law, and (2) those who do not so elect. It takes away the defenses of assumption of risk and negligence of a co-employee from the second class (except that where there are less than four co-employees the latter defense is not disturbed), but leaves both defenses intact to the first class. It prescribes the manner in which an employer may elect to come under its terms and how an employee may make his election, and when silence on the part of the employee will be considered an election; but it does not in terms compel either employer or employee to submit to its provisions. It then provides a comprehensive scheme by which, after both parties have so elected, any substantial injury, whether the result be fatal or not, received by the employee in the course of or incidental to his employment (except those caused by wilful misconduct) shall be compensated for by the employer according to certain definite rules, which rules are to be administered by the administrative board aforesaid by means of simple procedure definitely laid down, which gives to both parties fair notice and hearing, and results in findings and an award which may be filed in the circuit court and become a judgment. It further provides that the findings of fact shall be conclusive and the award subject to review only by action in the circuit court of Dane County, in which it can be set aside only (1) if the commission acted without or in excess of its powers; (2) if the award was procured by fraud, or (3) if the award is not supported by the findings of the fact. It then provides that the judgment thus rendered shall be subject to appeal to the supreme court.

The California Act, a modified adaption of the Wisconsin law, embodies the doctrine of comparative negligence, as does the Nevada law. Under this doctrine the board considers, in awarding damages, the comparative negligence of the parties. If the negligence of the injured employee has been slight, and that of the employer great, the award will be greater than if the situation were reversed.

The Massachusetts Act, passed in 1911, is optional both as to employer and employee. The employer is free to take no insurance, or to insure himself in the Massachusetts State Company, or to insure in a private accident company. But if the employer declines to take insurance, he is denied Common Law defenses in a suit by an injured employee. That is, the employee may recover, although the injury was caused by his own negligence, or that of a fellow worker. However, in any case, the employee cannot recover if the injury was caused by his own gross or wilful misconduct - the compensation is doubled if the injury was caused by the gross negligence or wilful misconduct of the employer, or one who exercises a superintendent's power for him.

If the injured employee declines to come under the Act, the Common Law defenses of contributory negligence or negligence of fellow worker are available against him. That is, if the injury is caused by either of these, or either is partly instrumental in causing the injury, the employee cannot recover, unless it be under the compensation and insurance Act of 1911. Obviously, the purpose of these conditions is to compel the employee to come under the act. The employee may elect to sue at Common Law, upon formal notice to the employer, when hired. This he would probably do if the employer has elected not to come under the Act. If the employer later chooses to come within the statute and protect himself with accident insurance, the employee may make his election within thirty days thereafter.

The Ohio Act is likewise virtually compulsory on the employee, if the employer elects to conduct his business under it. If the injured employee refuses to accept compensation as the Act provides, the employer may avail himself to the Common Law defenses, heretofore explained. The Ohio law was held constitutional in the case of State vs. Creamer, reported in Volume 97 North Eastern Reports, (Ohio) Page 602. The courts distinguish the Ohio and Massachusetts Acts, which are virtually compulsory, from the New York Act, declared unconstitutional, on the ground that the option given eliminates any constitutional objection as to the provisions concerning the right of trial by jury, or the right to due process of the Common Law. It would seem that the courts would be considered less enigmatical and equivocal, if they would boldly state that the sound legal basis for these laws is the exercise of police powers, already explained.

The Kansas Act is optional with the employer, or injured employee with the same general provisions as in other States both as to acceptance and rejection. The New Hampshire Act is an alternative between the employer's personal liability, and his contributing to a State insurance fund. The Washington Industrial Insurance Act has already been discussed in determining the question of constitutionality, which is the same whether the Act be one of strictly workmen's compensation direct from the employer, or through a scheme of State insurance. It has been stated that the Washington Act omits the option feature, and makes the law compulsory upon both the employer and employee. The Washington law was declared constitutional in the case of State vs. Clausen, reported in Volume 117 Pacific Reports, (Washington) Page 1101. The Arizona Act closely resembles the Washington Act, and to date has not been declared unconstitutional by the courts of that State.

The word "workmen" is used constantly in the various Acts. No doubt many controversies will arise as to the interpretation of this term, and each must be determined, as it presents itself in the light of the legislative intention. The word "accident" will probably be taken in its popular and usual sense, and will include any unexpected injury to a workman resulting during the course of his employment. The term "course of employment" has been thoroughly determined by adjudications in Agency and other Common Law cases. No doubt these adjudications will be used in limiting the construction of these words under the workmen's compensation Acts. The terms "negligence" and "serious or wilful misconduct" will be construed in the light of their interpretation in the Common Law cases as found in the subject of Torts.