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