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being those applicable to statutes generally.31 It
is not essential that the title contain details,
incidents, or means of carrying out the object
of the legislation.32 The term "workmen' em-
ployed in a generic sense is sufficient to include
the employees of a county as well as the serv-
ants of individuals or of private corporations.33
So the term "employers" has been held to
include a municipal corporation.3 Under a con-
stitutional requirement that no law shall embrace
more than one subject which shall be expressed
in its title, a statute providing for compen-
sation for accidental injury to, or death of,
employees would be unconstitutional if construed
to extend to occupational diseases.35 A constitu-
tional requirement that appropriation laws making
provision for the salaries of public officers and
for
current expenses of the state shall contain
provisions on no other subject is not violated by
the fact that a compensation act makes provision

for the appointment and the salaries of commissioners.36 When the title is sufficiently broad to indicate that the act is intended to furnish the only compensation to be allowed workmen subsequent to its becoming law, it includes any and all rights of action in which such compensation might have been obtained.37

[§ 25] M. Effect of Partial Unconstitutionality. It is well settled that a statute may be unconstitutional and void as to some of its provisions and valid as to others,38 and this rule has been applied to compensation legislation, some of the statutes expressly providing that, if any provision is held inoperative, no other part shall be affected.40

39

[§ 26] N. Persons Who May Urge Unconstitutionality. As a general rule no one can urge the unconstitutionality of a compensation act who is not injuriously affected by the feature complained of; and so the employer will not be heard to urge

41

either section").

tions, and declaring an emergency." | employer's liability and the proceed-raised, as they may be applicable to L. (1913) c 179 p 429; Middleton v. ings for the compensation of certain Texas Power, etc., Co., (Tex.) 185 employés, etc. The employer is liaSW 556; Postex Cotton Mill Co. v. ble when he is not a subscriber to McCamy, (Tex. Civ. A.) 184 SW 569; the insurance association, and the Consumers' Lignite Co. V. Grant, act then further provides what com(Tex. Civ. A.) 181 SW 202; Mem- pensation the employé may receive phis Cotton Oil Co. v. Tolbert, (Tex. from the association when the emCiv. A.) 171 SW 309. ployer is a member thereof." Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309, 312.

[b] Compensation to dependents included.-"The defendant argues that the Workmen's Compensation Act of 1911 is unconstitutional, because it embraces two objects and one only is expressed in the title. The point is thus stated in his brief: The act in its title prescribes only the liability of an employer to make compensation for injuries received by an employe, &c., and does not provide for compensation by an employer to the next of kin of an employe who is killed in the course of his employment.' We are unable to adopt defendant's view. It seems to us that the object of the act is single-to provide for the liability of an employer to make compensation for injuries received by an employe. Whether the compensation is to be made to the employe himself or to those who suffer pecunrary loss by reason of his injuries, it is equally a liability of the employer. Whether the injuries result in death or not, they are naturally and properly spoken of as injuries received by an employe. The expression 'fatal injuries' is not uncommon or improper. That this single object of providing for the liability of the employer is expressed in the title sufficiently appears from a mere reading of that portion of the title we have already quoted." Huyett v. Pennsylvania R. Co., 86 N. J. L. 683, 92 A 58.

31. See Statutes [36 Cyc 10171. 32. Mackin V. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309.

ex

[a] Illustrations.—(1) "The particulars pointed out in which it is claimed the act contains provisions not referred to or comprehended in the title are that it repeals an isting statute relative to contracts with attorneys for services, creates a right of action against a third party by the employer of the injured, subrogating the employer to the rights of the employee, and requires the injured employee to seek compensation from an insurance company, instead of his employer. We think the objections urged to the title of this act are not tenable under the decisions of this and other courts." Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 22, 153 NW 49. (2) "We have concluded that the subject of the act is stated in the title, and that there is not more than one subject contained therein. The ends to be reached are more than one, but all relate to the

33. Lewis, etc., County v. State Industrial Acc. Bd., (Mont.) 1.55 P 268.

40. See statutory provisions; and Consumers' Lignite Co. v. Grant, (Tex. Civ. A.) 181 SW 202; State v. Clausen, 65 Wash. 156, 197, 117 P 1101, 37 LRANS 466 (where the court said: "In section 27, the legislature has made it clear that it did not intend the provisions relating to those who are entitled to partake of its benefits to be so far an integral part of the act that it could not be eliminated in part without destroying the 34. Purdy v. Sault Ste. Marie, act in its entirety. It is there ex(Mich.) 155 NW 597; Allen v. Mill-pressly provided that the adjudicaville, 87 N. J. L. 356, 95 A 130. tion of invalidity of any part of the 35. Adams v. Acme White Lead, act shall not affect the validity of etc., Works, 182 Mich. 157, 148 NW the act as a whole or any other part 485, LRA1916A 283 and note [dist thereof. This means that the legisIn re Hurle, 217 Mass. 223, 104 lature intended the act to be enforced NE 336, LRA1916A 279, AnnCas as far as it may be, even though it 1915C 919, and In re Johnson, 217 might not be valid in its entirety. Mass. 388, 104 NE 735, on the ground It was competent for the legislature that there was in Massachusetts no SO to provide. Anything it could constitutional provision similar have eliminated itself and left an Mich. Const. art 5 § 21]. operative act, can be eliminated by the courts without destroying the entire act, if it is the will of the legislature that the remaining parts of the act shall stand after such elimination. So here, if it be true that the legislature has gone too far in this direction, and has attempted to include within its benefits certain employees who cannot be included without including employees generally, these can be omitted in the administration of the act without the necessity of nullifying the entire act. But whether any such workmen are so improperly included, we shall not here determine. The question can best be met when it arises during the course of the act's administration").

to

36. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106 (where the court, however, was influenced by the construction followed and acquiesced in by the legislature, and by the disorganization of public business and the destruction of private pecuniary rights which would follow a declaration of the unconstitutionality of the act).

37.

Peet v. Mills, 76 Wash. 437, 136 P 685, LRA1916A 358 and note, AnnCas1915D 154 and note (holding that L. [1911] c 74 precluded an action by an injured employee against the president of an employer corporation individually).

38. See Statutes [36 Cyc 976].

41. U. S.-Meese v. Northern Pac. R. Co., 206 Fed. 222 [rev on other grounds 211 Fed. 254, 127 CCA 622 (rev U. S.)].

V.

Iowa.-Hunter v. Colfax Cons. Coal
Co., 154 NW 1037.
Mich.-Mackin
Detroit-Timkin
Axle Co., 187 Mich. 8, 153 NW 49.
N. H.-Wheeler V. Contoocook
Mills Corp., 77 N. H. 551, 94 A 265.

N. J.-Sexton v. Newark Dist. Tel.
Co., 84 N. J. L. 85, 86 A 451 [aff 86
N. J. L. 701, 91 A 1070].

39. Consumers' Lignite Co. V. Grant, (Tex. Civ. A.) 181 SW 202; Memphis Cotton Oil Co. v. Tolbert, (Tex. Civ. A.) 171 SW 309, 313 (where the court said: "If the sections of the act authorizing the creation and regulation of Texas Employers' Insurance Association are unconstitutional, because not authorized under the general incorporation law of this state, the sections of the law involved in this suit are not so connected with the insurance sections as to render void the sections relating to contributory negligence, as- R. I. Sayles v. Foley, 96 A 340. sumed risk, and fellow servant"). [a] Illustrations.—(1) An emCompare Sexton v. Newark Dist. Tel. ployee who has had an opportunity Co., 84 N. J. L. 85, 91, 86 A 451 [aff to elect between his common-law 86 N. J. L. 701, 91 A 1070] (where action and the compensation prothe court said of P. L. [1911] p 134; vided for by the act, his employer "Sections 1 and 2 providing two en- having elected to come under the tirely different schemes-one regu- act, cannot question the validity of lative of the common law, and the the act on the ground that the emother purely the creature of statute ployee of a nonaccepting employer -are so interwoven and constitute has no such election, since the comso completely one single plan that it plaining employee cannot raise such is unlikely that if section 1 is bad question in the absence of an inthe legislature intended that section vasion of his rights by the provision 2 should stand. Indeed, the contrary attacked. Sayles v. Foley, (R. I.) 96 is expressly provided in paragraph | A 340. (2) An employer who has 24 of the act. It is therefore neces- not accepted the act cannot complain sary to consider the objections of alleged discriminations and in

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moneys appropriated by the state, under the provisions of the act in question, his financial burdens will be increased. Evanhoff v. State Industrial Acc. Commn., 78 Or. 503, 154 P 106.

42. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 SCt 167, 59 L. ed. 364; Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037; Jensen V. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas 1916B 276.

[a] Illustrations.—(1) "The stress of the present argument, in the brief and at the bar, is upon the feature of the law which takes away the defense of contributory negligence from establishments employing five or more and still permits it to those concerns which employ less than five. Much of the argument is based upon the supposed wrongs to the employé, and the alleged injustice and arbitrary character of the legislation here involved as it concerns

equalities in the provisions made for the regaining of common-law defenses by accepting. Wheeler V. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. (3) An employer who has not accepted the act cannot urge that it is unconstitutional because it denies to employers who accept the provisions of the law a jury trial on the issue of the damages. Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 A 265. (4) An employee cannot question the constitutionality of the act on the ground that it delegates legislative power by permitting the employer and the employee to provide a benefit scheme in lieu of the compensation provided by the act, as provided for by Pub. L. [1912] c 831 art 4, where such employee and employer have made no such agreement. Sayles v. Foley, (R. I.) 96 A 340. (5) Adult employees cannot question the constitutionality of the act (Pub. L. [1912] c 831), on the ground that it unjustly discriminates between employ-him alone, contrasting an employé ers and deprives minor employees of property without due process of law, since one questioning an act as violative of the federal constitution must show that the alleged unconstitutional feature of the law injures him, in order to raise the question of its constitutionality. Sayles v. Foley, supra. (6) One not a parent or a minor cannot assert that a parent is deprived of his right of action for injury to his minor child. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 NW 49. (7) An allegation that a provision that, "in the employment of minors, section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor" is void will not be considered when it appears that decedent was thirtyfour years old at the time of his death. Sexton v. Newark Dist. Tel. Co., 84 N. J. L. 85, 89, 86 A 451 [aff 86 N. J. L. 701, 91 A 1070]. (8) "Now, speaking as to the employés excluded, their exclusion is either the granting of a privilege denied to others or the imposition of a burden from which others are relieved. If the last, it suffices that no excluded person is here complaining, and that appellant has no grievance because others are unfairly treated. Speak

ing from the angle of those included, their inclusion is either a burden not placed on others, or a privilege not shared by others. If the last, there is no grievance. One may not well complain of a discrimination consisting of his being treated better than others." Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1053. (9) "Upon the argument much was said concerning the constitutionality of a legislative act compelling contribution from one person, or employer, to be used in paying for the negligence of another. That is a defense only to be made by those obliged to contribute to, or those charged with the duty of administering, the funds contributed." Meese v. Northern Pac. R. Co., 206 Fed. 222, 225 [rev on other grounds 211 Fed. 254, 127 CCA 622 (rev U. S.)].

[b] A taxpayer may urge that, by unlawful expenditure of the

the

in a shop with five employés with those having less. No employé is complaining of this act in this case. The argument based upon such discrimination, so far as it affects employés by themselves considered, cannot be decisive; for it is the wellsettled rule of this court that it only hears objections to the constitutionality of laws from those who are themselves affected by its alleged unconstitutionality in the feature complained of." Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 35 SCt 167, 59 L. ed. 364. (2) "In this, an appeal by an employer, it is urged that the right of rejection by the employé is unduly clogged: First, because of the requirements concerning the form and verification of the notice; and, second, because the sufficiency of these is to be passed on by the commissioner; the act is challenged because section 3 authorizes the commissioner to return a rejection by the employé if it fails to comply, in form or verification, with the requirements of the act, it being urged that this is power to construe contracts against their terms. And there is a contention that the act is void because it interferes with the exclusive jurisdiction of the federal courts of actions for injuries of employés of railroads, in that injuries to such employés are not excepted in the act. Section 22 of the act guards against this very interference with federal law. But, in any view, the alleged interference does not concern appellant." Hunter V. Colfax Cons. Coal Co., (Iowa) 154 NW 1037, 1048.

43. Jensen v. Southern Pac. Co.. 215 N. Y. 514, 109 NE 600, LRA1916A 403 and note, AnnCas1916B 276.

44. De Biasi v. Normandy Water Co., 228 Fed. 234, 235 (holding, with reference to the New Jersey act of July 4, 1911, § 2 par 12, amended by the act of April 17, 1914 [P. L. 499]. that, under art 1 of the treaty between the United States of America and his majesty the king of Italy, concluded on Febr. 25, 1913, amending art 3 of the treaty of Febr. 26, 1871, which reads, "The citizens of each of the high contracting parties shall receive in the states and terri

for

tories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs, and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter," a clause in a state compensation act, providing that compensation shall not apply to alien dependents not residents of the United States, is invalid, but that such a treaty is not retroactive).

45. In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372 and note.

[a] Reason for rule. "These various acts, although having certain features in common, nevertheless differ widely in many essential aspects. Some are compulsory. Some prohibit contracts for a different form of compensation, and make criminal under severe penalties failure to comply with their terms. Some provide for strict State insurance, while others do not. The amount of compensation afforded and the circumstances under which it is to be awarded differ. The diversity of public policy already manifested between the several States is considerable. To say that such acts are intended to operate on injuries received outside the several States enacting them would give rise to many difficult questions of conflict of laws.

It would require a large dependence upon the comity of other States in enforcing our act and in refraining from enforcing their own as to a subject which commonly is wholly under the control of the several States, and with which, it has been pointed out, a substantial number have already manifested a purpose to deal by a new and special legislation. No court of any sister State, so far as we are aware, has had occasion to pass upon the precise questions here presented." In re Gould, 215 Mass. 480, 487, 102 NE 693, AnnCas1914D 372.

46. Conn. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436 and note.

N. J.-Rounsaville v. Central R. Co., 87 N. J. L. 371, 94 A 392.

N. Y.-Post v. Burger, 216 N. Y. 544. 111 NE 351, AnnCas1916B 158 and note; Spratt v. Sweeney, etc., Co., 168 App. Div. 403, 153 NYS 505.

R. I.-Grinnell v. Wilkinson, 98 A 103.

W. Va.-Gooding v. Ott. 87 SE 862. Que. Vincent v. Grand Trunk R. Co., 45 Que. Super. 353.

"The place where the accident occurs is of no more relevance than is the place of accident to the assured in an action on a contract of accident insurance, or the place of death of the assured in an action on a contract of life insurance.' Rounsaville v. Central R. Co., 87 N. J. L. 371, 374, 94 A 392.

on the

case where it is intended that the contract shall be wholly performed without the state,47 theory that the obligation which it is sought to

for rule.-(1) [a] "If Reasons our Act intends its contracts of employment include compensation to for injuries occurring only within our jurisdiction, it manifestly defeats its own ends. In that case the employer may not charge to the industry the compensation for injuries occurring without the State, and the employee or his dependents may not collect the same. Neither employer nor employee can know what portion of this period of employment will be subject to the provisions of the Act, and no provision for insurance of this liability will be practically possible, since it may not ordinarily be known what part of the service will be in and what part out of the State, ór in what jurisdiction the service will be performed, in industries and commercial enterprises engaged in intrastate and interstate employment. The State boundary is not the limit of very many businesses. To subject them to the laws of the many jurisdictions in which they may be engaged will be especially burdensome to them, and involve them probably in greater expense and liability and far greater difficulties than under the old system. Equally hard will it prove to the employee since he must pursue his remedy in the State of the accident, or the Federal court applying that State's law, and thus he may be brought under any one of many different compensation Acts, with whose provisions he cannot hope to be familiar; some Acts contractual in character, some compulsory, some optional, and some ex delicto; and he may find he has forfeited the benefit of the foreign Act through failure to comply with its provisions. A reading of the several Acts now in force convinces us that these difficulties are not imaginative, but imminent actualities.' Kennerson V. Thames Towboat Co., 89 Conn. 367. 375, 94 A 372, LRA1916A 436. (2) "It was the intention of the legislature to secure such injured workmen and their dependents from becoming objects of charity, and to make reasonable compensation for injuries sustained or death incurred by reason of such employment a part of the expense of the lines of business included within the definition of hazardous employments as stated in the act. The danger of deinjured workingmen and their pendents becoming objects of charity is just as great when an accident occurs outside the boundaries of the state as it is when it occurs within the state. The interests of the state in its citizens is just as great in one case as in the other. The provisions in the act making the insurance of employers a part of the scheme and purpose of the act are to make certain that the compensation provided by the act will be paid. The failure to provide such insurance takes away in part the benefits that the employer receives pursuant to the act. The employer in this case assented to the contract of employment under the act to the extent of providing insurance with the insurance carrier. The act, in view of its humane purpose, should be construed to intend that in every case of employment there is a constructive contract between the employer and employee, general in its terms and unlimited as to territory, that the employer shall pay as provided by the act for a disability or the death of the employee as therein stated. The duty under the statute defines the terms of the contract." Burger, 216 N. Y. 544, 553, 111 NE 351, AnnCas1916B 158.

Post v.

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the

the act. employment within Ordinarily a statute has no extraterritorial effect. But where the regu

enforce is based on contract and not on tort.48 No distinction is made between the optional and the compulsory statutes.49 The intention that a compensation, and that the effect of our decision may be to allow a double recovery, we can only say that questions of that kind had better be dealt with as they arise, and in the light of the exact scheme of comIt pensation that may be involved. is enough for the present to say that recovery of compensation in two states is no more illegal, and is not necessarily more unjust than recovery upon two policies of accident or life insurance.' Rounsaville v. Central R. Co., 87 N. J. L. 371, 374, 94 A 392.

[c] Practical difficulties may be overcome.-"We appreciate that any determination that may be made of the question under consideration [extra territorial effect] will result in some practical difficulties in administering the statute, but the difficulties that will be met with in administering the statute construed as requiring a contract binding upon both parties without limitation will be less burdensome than the difficulties that would be experienced with a contrary construction of the statute. The practical difficulties that may be met in administering the statute as herein construed can be substantially overcome by adopting rules for the commission or perhaps

by further legislation." Post V.

Burger, 216 N. Y. 544, 559, 111 NE 351, AnnCas1916B 158.

V.

47. Gardener Horseheads Constr. Co., 156 NYS 899 (holding that where an employer, with an office in New York and carrying insurance as to employees engaged in work in the state, under the workmen's compensation law [Consol. L. c 671, the pay rolls on jobs outside the state not being used as a basis for such insurance, employed decedent, while he was out of the state, to in engage the employment in which he was engaged in Pennsylvania at the time of his death, compensation could not be awarded, although the contract be regarded as one made in New York); Gooding v. Ott, (W. Va.) 87 SE 862. Compare Johnson v. Nelson, 128 Minn. 158, 150 NW 620 (where, without discussion of the applicability of the Minnesota law, the court held that the Wisconsin compensation act was properly pleaded in defense to a tort action in Minnesota under the following facts:

Plaintiff, on April 2, 1913, entered defendant's employ on railroad construction work. He worked at two different places in Minnesota. On June 26 of the same year he was asked to go to Wisconsin on similar work there being done by defendant. He accepted, and was injured four days thereafter. His original hiring was for no definite time and for no particular place. On June 10 defendant had elected to accept the provisions of the Wisconsin Workmen's Compensation Act [St. (1913) § 2394-8]).

[a] Permanent and temporary absence distinguished.—"In this case the decedent had not been employed by the appellant in the state since 1912. His employment had not been continuous, but had been from time to time for certain jobs which were being performed entirely without the state. The contract of employment did not contemplate any work by him within the state; no such work was done. The statute in question is intended to regulate the relations between the employer and employé in hazardous employments within the state, and to protect the employé within the state from the ordinary risks of the employment, and to charge those risks upon the ultimate consumer. The mere fact that an employé is engaged by a resident of the state to go out of the state for service, and no service in the state is contemplated or done, cannot bring

lar service of the employé is being performed in the state, and, as an incident to it, he goes over the state line temporarily, we have held that such temporary absence from the state does not relieve the employer from liability under this statute." Gardener v. Horseheads Constr. Co., 156 NYS 899, 901.

48. Kennerson V. Thames Tow

boat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Post v. Burger, 216 N. Y. 544, 556, 111 NE 351, AnnCas 1916B 158; Grinnell V. Wilkinson, (R. I.) 98 A 103; Gooding v. Ott, (W. Va.) 87 SE 862.

"If the relation between the employer and employee is contractual the contract should be construed as binding upon both parties thereto without limitation as to territory the same as all ordinary contracts, based upon mutual agreement independent of statutory duty." Post v. Burger, supra.

It

[a] Contrary ruling distinguished. "We must accept the construction accorded the Massachusetts Act by its Supreme Judicial Court [In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372]. may be well, however, to point out that the court does not state that its Act is contractual in character. That, as we have indicated, is of final importance in the conclusion we reached concerning our own Act, Then, too, under the Massachusetts Act, the employee is merely the beneficiary under a contract between the employer and the insurer; with us the employer and employee enter into a contract relation. In its reference to and comment upon certain sections of their Act, the court says that it must be found within the Act from unequivocal language,' or 'plain and unmistakable words,' that the Act was intended to relate to injuries without the Commonwealth. We have adopted a broader rule. We read our Act in the light of the purpose, subject-matter, and history of the Act, to determine whether it expressly or by reasonable inference intended to include in its contract injuries without our jurisdiction. This is our ordinary rule in the interThe Massapretation of statutes. chusetts court states that 'the subject of personal injuries received by a workman in the course of his employment is within the control of the sovereign power where the injury occurs.' And it argues that, if the Act had intended employers and employees from different States to carry their domiciliary personalinjury law with them into jurisdictions, it would have pressed its intent in unambiguous words. This argument concerns proceeding to enforce an ex delicto claim, not one for compensation by way of contract. It is also argued that, if an Act is given extraterritorial force, similar effect must be given to like laws of other States. if contracts of employment cover compensation for injuries outside the State, recovery for these will be governed by the usual rules for the construction and enforcement of all contracts. We should give similar effects to contracts of like character to those before us, though made under a compensation Act of another jurisdiction, provided they did not conflict with our law or public policy, and the machinery provided for the ascertainment and collection of the compensation could be used in jurisdiction." Kennerson Thames Towboat Co., 89 Conn. 367, 380, 94 A 372. LRA1916A 436.

our

other ex

a

V.

Nature of obligation see supra § 4. 49. Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158.

51

pensation act shall apply to injuries received outside the state will not be presumed,50 but it is sufficient that such intention may reasonably be inferred from the language of the act or from its purpose, subject matter, or history. Apart from the nature of the liability created, the intent of the legislature to allow a compensation act extraterritorial effect has been held to be indicated by the fact that its definition of the term "'employee" includes a person engaged in the course of his employment away from the plant of the employer,52 and by the fact that the cost, to the employer, of state insurance is determined by ascertaining the number of all the employees of the employer and the wages paid to them without provision for deduction by reason of the fact that any of the employees are or may be engaged outside the state.53

Actions of tort. The question of whether a compensation act may be pleaded in defense to a tort action, it has been held, is governed by the law of

50. Kennerson V. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436.

51. Kennerson V. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436. But see In re Gould, 215 Mass. 480, 484, 102 NE 693, Ann Cas1914D 372 and note (where the court said: "In the absence of unequivocal language to the contrary, it is not to be presumed that statutes respecting this matter are designed to control conduct or fix the rights of parties beyond the territorial limits of the State").

be

[a] Matters held not to show contrary intention.-(1) Conn. Acts (1913) c 138 pt B § 7, requiring the employer to furnish medical and surgical aid; § 23, requiring injured employees to submit to examination by a reputable physician; § 17, giving each compensation commissioner jurisdiction of claims and questions arising in his jurisdiction; § 22, requiring voluntary agreements tween employers and injured employees to be filed with the clerk of the superior court for the county in which the injury occurred; § 26, requiring awards to be similarly filed; and § 27, authorizing appeals to the superior court for the county in which the injury was sustained. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436. (2) "The only sections of the act that are claimed by the appellants as showing that it was not the intention of the legislature to give the act extraterritorial effect are section 2, subdivision 8, section 104 and section 114. Section 2, subdivision 8 [excluding vessels in interstate commerce] was doubtless drawn to avoid a conflict with the Federal Employers' Liability Act. The language of that subdivision should not be given an effect and meaning contrary to the general policy of the act as shown by reading it as a whole. Section 104 [as to inspection of plants by commission] is the same in terms as it would have been had there been an express provision making a contract concededly applicable to employees in all parts of the world. Section 114 [application of statute to persons engaged in interstate commerce] is one of limitation, intended to obviate a construction of the act violative of the Constitution of the United States. (Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276)." Post v. Burger, 216 N. Y. 544, 552, 111 NE 351, Ann Cas1916B 158.

[b] Matters held to show contrary intention.-Necessity of examination of injured employee by physician of commonwealth; procedure sections dealing wholly with boards

the place where the injury is received, although the contract of employment was made in the state of the forum.54

55

Foreign acts. The English Workmen's Compensation Act, has no extraterritorial effect save as to certain classes in the shipping service, while the contrary has been held concerning the German act.56 The law of Quebec has been held to apply to accidents occurring outside the province to a workman hired within the province, for labor to be performed both within and without it.57

[§ 29] B. Injury within and Contract outside of Jurisdiction. Where the contract of employment was made outside the state but the injury occurred within the state, the state court has applied the compensation law of the state,58 on the theory that, although the liability is contractual, it arises not from the contract of employment but from the statute, and that the statute indicates the public policy of the state, which policy will be enforced against a contract made in another state.60 There

59

and courts within commonwealth; | form a mere rule of evidence, is, in requiring hearings of committee on arbitration to be held in city or town where the accident occurred; requiring report to accident board within forty-five hours; giving directors of insurance association access to premises of subscribers; making agreements to waive compensation invalid; exempting payments from debts of employee; failure to make express provisions as to foreign accidents. In re Gould, 215 Mass. 480, 102 NE 693, AnnCas1914D 372.

52. Post v. Burger, 216 N. Y. 544, 111 NE 35], AnnCas1916B 158.

53. Post v. Burger, 216 N. Y. 544, 111 NE 351. AnnCas1916B 158.

54. Johnson v. Nelson, 128 Minn. 158, 150 NW 620.

[a] Plaintiff cannot plead ignorance of the laws of the state wherein his employment was performed and under which his right to redress for the injury must be asserted. Johnson v. Nelson, 128 Minn. 158, 150 NW 620.

55. Schwartz V. India Rubber, etc., Works Co., [1912] 2 K. B. 299, 5 BWCC 390; Tomalin v. Pearson, [1909] 2 K. B. 61, 2 BWCC 1; Hicks v. Maxton, 1 BWCC 150. See also Griffiths v. Warren, 6 WCC 65 (confining to Great Britain the operation of the act of 1897).

56. Schweitzer v. Hamburg-Amerikanische, etc., Co., 78 Misc. 448, 138 NYS 944.

57. Vincent V. Grand Trunk R. Co., 45 Que. Super. 353.

58. West Jersey Trust Co. v. Philadelphia, etc., R. Co., 88 N. J. L. 102, 95 A 753; Davidheiser v. Hay, Fdy., etc., Works, 87 N. J. L. 688, 94 A 309; American Radiator Co. v. Rogge, 86 N. J. L. 439, 92 A 85, 94 A 85. Compare Sabella v. Brazileiro, 86 N. J. L. 505, 91 A 1032 (where evidence was held to show that longshoreman's contract was made within state).

[a] Rule of procedure.—(1) "The statute states the obligation in terms of the law of evidence; the contract of hiring is presumed to have been made with reference to section 2, and in the absence of express statement or written notice, the parties are presumed to have accepted the provisions of section 2. Rules of evidence are rules of procedure, and procedure by well-settled principles is governed by the law of the forum. This view, it must be confessed, is somewhat technical, and we do not rest on it alone. The real object of the statute was to create an irrebuttable presumption in the absence of express statement or notice, and the creation of a presumption irrebuttable, except in these ways, although it may be in

effect, a rule of substantive law. As such we deal with it. As we have already said, we find nothing in the New York contract inconsistent with the contract implied by the New Jersey statute.' American Radiator Co. v. Rogge, 86 N. J. L. 436, 438. 92 A 85, 94 A 85. (2) Of the language just quoted the court said in a later case: "We said that the statute stated the obligation in terms of the law of evidence, and that rules of evidence are rules of procedure, but we added that the view was technical and that we did not rest on it alone. It would have been better to omit the word 'alone;' but no ambiguity can arise in view of what follows. We said that the real object of the statute was to create an irrebutable presumption, that such a presumption was in effect a rule of substantive law, and as such we dealt with it. The whole opinion shows that the case was rested upon the public policy of New Jersey." Rounsaville v. Central R. Co., 87 N. J. L. 371, 373, 94 A 392.

[b] The English act, however, does not apply to the case of a foreign seaman on a foreign vessel who is injured in an English port. Panagotis v. Pontiac, [1912] 1 K. B. 74, 5 BWCC 147.

59. American Radiator Co. V. Rogge, 86 N. J. L. 436, 92 A 85, 94 A 85.

"The liability of the employer to make compensation is an obligation superimposed upon the original contract as a condition of its performance in New Jersey, and it is contractual in character because either party may escape the obligation by giving notice that he will not be bound thereby, and because it does not arise out of any wrong-doing. But the addition of this contractual obligation by statute does not affect the contract of hiring; that is still enforced as far as it goes by its terms." American Radiator Co. V. Rogge, 86 N. J. L. 436, 439, 92 A 85, 94 A 85.

60. American Radiator Co. V. Rogge, 88 N. J. L. 436, 439, 92 A 85, A 85.

[a] Discussion of rule.-"We find no evidence in this case of any term in the New York contract that prohibits the applicability of the New Jersey statute. If there were, the parties could not by their agreement prevent New Jersey from regulating the conduct of its own industries and from prescribing as one of the terms upon which the performance of a foreign contract of hiring shall be permitted in this state, the implication by law of a contract for compensation to the workman. It is open to the employer under a New

is authority, however, apparently in support of a contrary view holding that, where a contract of employment is made in a foreign country under the law of which the remedy of the employee through a compensation act is exclusive, the foreign law will control in an action by the employee for an injury received within the jurisdiction.61

[§ 30] C. Place of Contract and of Injury Both outside of Jurisdiction. Where neither the place of the contract of employment nor that of the injury is within the state, the courts will recognize the law of the place of the injury62 unless contrary

York contract to prevent the opera-
tion of section 2 if he wishes by
notice; if he fails to give the notice,
and undertakes to perform the con-
tract in New Jersey, he voluntarily
subjects himself to our law and is
governed thereby.
If we as-
sume in favor of the defendant that
there is an implied term in the New
York contract adverse to the Work-
men's Compensation act, we are then
face to face with the question
whether that act indicates the pub-
lic policy of New Jersey, which will
be enforced even as against a con-
tract made in another state. We
think it does. The legislation marks
a complete change in the policy of
the state, a change so complete that
pecuniary liability in the class of
cases covered by the act, rests not
upon any fault of the defendant, but
upon the simple fact of the relation-
ship of employer and employe.
The act makes no distinction be-
tween cases where that relationship
is created by a contract made in
New Jersey and a contract made in
another state. The language of sec-
tion 9 is general; it covers every
contract of hiring.' The policy of
the act would be thwarted if it were
applicable in the case of some em-
ployes who were hired in this state
and inapplicable to employes of the
same employer working side by side
who were hired in another state.
Compensation is secured to work-
men, regardless of the employer's
fault, because the legislature has
thought such security to the advan-
tage of our industries and our work-
men. The public policy is not based
upon some loose notions of the
court based upon the opinions of our
favorite newspaper or our political
predilections, but upon the declared
will of the legislature which has the
right to determine our public pol-
icy." American Radiator Co. V.
Rogge, 86 N. J. L. 436, 438, 440, 92
A 85, 94 A 85.

61. Schweitzer v. Hamburg-Amerikanische, etc., 78 Misc. 448, 138 NYS 944. See also Schweitzer v. Hamburg-Amerikanische, etc., 149 App. Div. 900, 134 NYS 812 (where it was held that a defense setting up the foreign law must be replied to).

"A foreign law to which both employer and employee, engaged in interstate and foreign commerce and transportation, have subscribed and upon the basis of which the contract of employment was made and entered into, where the cars or ships of the employer enter our state and in or upon which while within our borders an accident occurs to the employee through his employer's negligence, particularly where the contract of employment provides for a fixed compensation in case a specified injury to take the place of a right of action at law and which is lawful both in the place where made and that in which the cause of action arose, should obtain recognition and enforcement here. To hold otherwise works not for benefit, but rather injury, to our interstate and foreign commerce." Schweitzer v. HamburgAmerikanische, etc., 78 Misc. 448. 451, 138 NYS 944.

62. Piatt v. Swift, 188 Mo. A. 584, 176 SW 434; Wasilewski v. Warner Sugar Refining Co., 87 Misc, 156, 149 NYS 1035; Albanese v. Stewart. 78 Misc. 581, 138 NYS 942; Pendar v.

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H. & B. American Mach. Co., 35 R. I. 321, 87 A 1, LRA1916A 428; Reynolds v. Day, 79 Wash. 499, 140 P 681, LRA1916A 432. See Johansdotter V. Canadian Pac. R. Co., 47 Que. Super. 76 (holding that an action might be maintained in Quebec under the law of Alberta, where the employee was in the service of a corporation having its principal place of business in Montreal).

of

[a] Applications of rule.-(1) The provision of Mass. Acts (1911) c751, requiring a notice in writing from the employee to the employer at the time of employment, that he claims his common-law right of action for personal injuries, which otherwise shall be deemed to be waived, may be asserted in defense to the employee's action at common law, in Rhode Island, for damages for an injury sustained in Massachusetts, in which state the contract of employment was entered into and plaintiff entered on and continued his employment. Pendar v. H. & B. American Mach. Co., 35 R. I. 321, 87 A 1, LRA1916A 428. (2) The New Jersey Employers' Liability Act of April 4, 1911 (P. L. [1911] p 134), defining the liability of an employer for injuries received by an employee, and providing that a contract hiring shall be presumed to have been made under the act, unless a contract of employment or a notice sent by either party to the other shall otherwise provide, is elective, and becomes compulsory on the parties only in the event that neither disaffirms it, and is valid, and governs an action for an injury to an employee received in New Jersey, where neither party disaffirmed the statute. Albanese v. Stewart, 78 Misc. 581, 138 NYS 942, (3) An action under the New Jersey Compensation Act of April 4, 1914 (P. L. [1914] p 141) § 18. providing that in case of dispute, or of failure to agree on a claim for compensation, either party may submit the claim to the judge of common pleas of such county who would have jurisdiction in a civil case, cannot be brought in the supreme court in New York, although, by reason of defendant's removal of its place of business to New York, the state in which it was incorporated, personal service cannot be had on it in New Jersey. Lehmann v. Ramo Films, 155 NYS 1032. (4) The New Jersey Workmen's Compensation Act (P. L. [1911] p 136) § 2 subd 9, providing for the recovery of compensation for an injury to or the death of a servant, and declaring that every contract of hiring made subsequently to the taking effect of the act shall be presumed to have been made with reference thereto, applies only where the contract of hiring is made in New Jersey, and the complaint in an action for the death of a servant which fails to set up a hiring made in New Jersey is demurrable. Pensabene v. F. & J. Auditore Co., 155 App. Div. 368, 140 NYS 266 [rev 78 Misc. 538, 138 NYS 947]. (5) Where an employee's action for injuries received in New Jersey after the taking effect of the New Jersey Workmen's Compensation Act (P. L. [1911] p 134, as amended by P. L. [1911] p 763), is brought under the New Jersey Employers' Liability Act of 1909 (P. L. [1909] p 114), regulating the common-law defenses

of the employer, and not under the 1911 statute, and it appears that nothing was done by either plaintiff or defendant to avoid the application of the compensation plan provided for by such statute, the complaint will be dismissed. Wasilewski v. Warner Sugar Refining Co., 87 Misc. 156, 149 NYS 1035. (6) Under the New Jersey Act (P. L. p 134), a widow, administratrix of the estate of a servant, a resident of New York, killed in the course of his employment under contract made in the state of New Jersey, could not recover in New York the minimum lump sum of compensation in view of his weekly wages provided by the New Jersey act, where a court of common pleas of New Jersey had not fixed a lump sum of compensation. McCarthy v. McAllister Steamboat Co., 158 NYS 563. (7) Where an employee injured in Kansas had elected to take under the Kansas compensation act and afterward made a contract in Missouri with a firm of Missouri lawyers to prosecute his claim for damages by an action at law, the attorneys could acquire no lien by a notice to the employer under the Missouri statute, since under the Kansas compensation act the cause of action on which the lien was claimed had ceased to exist on the employee's election to take under it. Piatt v. Swift, 188 Mo. A. 584. 176 SW 434. 63.

Wasilewski v. Warner Sugar Refining Co., 87 Misc. 156, 161, 149 NYS 1035 (where the court said: "An adjudication precisely in point is that in Albanese v. Stewart, 78 Misc. 581, 138 NYS 942, in which, as here, the plaintiff sued in New York for injuries received while he was employed in New Jersey. The defendant pleaded the New Jersey Compensation Act of 1911, and the plaintiff demurred to the defenses based thereon. Mr. Justice Cohalan, in overruling the demurrer, held that the New Jersey statute determined the plaintiff's rights and that the conceptions of public policy declared in Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156, did not bar the New Jersey act of 1911 from full recognition in the courts of New York"). See Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158 (where the injury occurred outside of the state, although the contract was made within it).

64. Hamm v. Rockwood Sprinkler Co., 88 N. J. L. 564, 97 A 730.

65. Reynolds v. Day, 79 Wash. 499, 140 P 681, LRA1916A 432.

[a] Reason .for rule.-"In order to make the common law remedy so contrary to the public policy of this state that it will not be enforced as a matter of comity, it must appear that the common law remedy will never be enforced under any circumstances where the cause of action arises in this state between our own citizens. We again impress the fact that the common law action may still be maintained and its remedy enforced as against an employer in this state in all cases not specifically covered by the industrial insurance act. Moreover, the industrial insurance act, upon which the respondents rely as the sole manifestation of a public policy of this state inimical to the common law action,

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