Vermont Bar Journal, Vol. 40, No. 2 Summer 2015, Vol 41, No. 2 | Page 13

Legislative History The draft used as a template by the Legislature was a uniform law. It wasn’t the first uniform law in Vermont.41 The first was the Uniform Negotiable Instruments Act (1912). That was followed by uniform acts on warehouse receipts (1912), and in the year the Vermont Workmen’s Compensation Act was passed, a uniform law on bills of lading. Others followed after that date, including extradition (1917) and air navigation (1923), all in the interest of encouraging interstate commerce and making the law of neighboring states generally congenial to Vermont’s and vice-versa. There is no purely uniform law, not in Vermont at least. Every uniform law that is submitted for consideration by the legislature is amended in some small but important detail, to give a Vermont cast to the boilerplate language of the uniform laws. The uniform law was modeled on the British Workmen’s Compensation Act.42 Justice Ray Keyser, Sr., used English cases decided before the passage of the Vermont act as precedent in ruling on workmen’s compensation cases in 1941.43 Justice William H. Taylor in 1925 was not reluctant to look to other states for support for direction. “Practically all the states have adopted workmen’s compensation acts. While not entirely uniform, they are essentially the same in many of their provisions.”44 But there were limits. In 1921, Justice George Powers wrote, “The value of precedents is somewhat uncertain. A slight difference in the wording of the statutes or some small variation in the circumstances may impair the value of an outside decision when attempt is made to apply it here.”45 Justice John Buttles agreed. An examination of the workmen’s compensation laws in force in other www.vtbar.org states reveals considerable diversity of provisions for determining the rate at which compensation is to be paid. In all of the states having compensation laws the compensation rate is made to depend upon wages or earnings, but the question ‘What wages?’ is variously answered.46 Justice Buttles, who wrote many of the early workmen’s compensation decisions for the Court, stressed that the uniform law was merely a framework, onto which Vermont had added its own provisions, including a method for calculating losses.47 In another decision, Buttles wrote, “So great is the diversity among the compensation laws of the various states that adjudications from other jurisdictions are of little or no value as precedents here.”48 Like many states, Vermont’s workmen’s compensation law was elective. In DeGray v. Miller Bros. Const. Co. (1934), Justice Frank Thompson explained, Ruminations: The Centennial of Workers’ Compensatioin in Vermont made more difficult, according to Flint, because of opposition from “certain members of the legal profession who feared a curtailed practice.”38 Governor Charles Gates heralded the success of the law in his 1917 farewell address, explaining that 5,043 cases were filed in the first year, and only one had crested into the court system. Workmen’s compensation was underway, at a cost of $8,765.75 for its administration.39 The Biennial Report of the Commissioner of Industries (1918) counted about 52,000 Vermonters engaged in factories, and that during the biennium there had been 12,447 accidents reported.40 Workers were crushed by falling rock, asphyxiated, run over by trains and trolleys, hit in the head by a flying hammer head, injured in falls from scaffolding and explosions. A total of $111,099.11 was paid out in compensation for the biennium. To induce the employer to elect to come under the provisions of the act, he is, in case of refusal, deprived of his common-law defenses of contributory negligence, assumption of risk, and negligence of a fellow servant, if the employee elects to come under the act, while the employee, if he elects not to come under the provisions of the act, and the employer elects to come under its provisions, must, in a common-law action for negligence, meet those defenses in addition to proving that his injuries were due to his employer’s negligence.49 Once the law took effect, every contract of employment, whether entered into before or after the act took effect, was rewritten by operation of law to require employers, defined as those public and industrial employments with ten or more workers, to be subject to the act.50 The act provided a set schedule of payments for various injuries and this statutory limit on recovery was one of the selling points of the law.51 By fixing the risk, employers would avoid having to pay large damages awarded by a too sympathetic jury, if the matter went to trial. The law applied to all businesses, but exempted domestic servants and companies with less than ten employees, and farmers. Originally a three-member commission ran workmen’s compensation, but in 1917 the legislature provided for the appointment of a Commissioner of In