« AnteriorContinuar »
being those applicable to statutes generally:31 It for the appointment and the salaries of commisis not essential that the title contain details, sioners. 36 When the title is sufficiently broad to incidents, or means of carrying out the object indicate that the act is intended to furnish the of the legislation.32 The term "workmen” em- only compensation to be allowed workmen subseployed in a generic sense is sufficient to include quent to its becoming law, it includes any and all the employees of a county as well as the serv- rights of action in which such compensation might ants of individuals or of private corporations.33 have been obtained.37 So the term "employers' has been held to [ Ø 25] M. Effect of Partial Unconstitutionality. include a municipal corporation.34 Under a con- It is well settled that a statute may be unconstitustitutional requirement that no law shall embrace tional and void as to some of its provisions and more than one subject which shall be expressed valid as to others,38 and this rule has been applied in its title, statute providing for compen- to compensation legislation,39 some of the statutes sation for accidental injury to, or
death of, expressly providing that, if any provision is held employees would be unconstitutional if construed inoperative, no other part shall be affected.40 to extend to occupational diseases.3 A constitu- [ 0 26] N. Persons Who May Urge Unconstitutional requirement that appropriation laws making tionality. As a general rule no one can urge the provision for the salaries of public officers and unconstitutionality of a compensation act who is for current expenses of the state shall contain not injuriously affected by the feature complained provisions on no other subject is not violated by of ;41 and so the employer will not be heard to urge the fact that a compensation act makes provision 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 either section"). Texas Power, etc., Co., (Tex.) 185 employés, etc. The employer is lia- 40. See statutory provisions; and SW 556; Postex Cotton Mill Co. v. ble when he is not a subscriber to Consumers' Lignite Co. Grant, McCamy, (Tex. Civ. A.) 184 SW 569; the insurance association, and the (Tex. Civ. A.) 181 SW 202; State v. Consumers' Lignite Co. Grant, act then further provides what com- Clausen, 65 Wash. 156, 197, 117 P (Tex. Civ. A.) 181 SW 202; Mem- | pensation the employé may receive | 1101, 37 LRANS 466 (where the court phis Cotton Oil Co. v. Tolbert, (Tex. from the association when the em- said: "In section 27, the legislature Civ. A.) 171 SW 309.
ployer is a member thereof." Mem- has made it clear that it did not in[b] Compensation to dependents phis Cotton Oil Co. v. Tolbert, (Tex. tend the provisions relating to those included. "The defendant argues Civ. A.) 171 SW 309, 312.
who are entitled to partake of its that the Workmen's Compensation 33. Lewis, etc., County v. State benefits to be so far an integral part Act of 1911 is unconstitutional, be- Industrial Acc. Bd., (Mont.) 155 P of the act that it could not be elimcause it embraces two objects and 268.
inated in part without destroying the one only is expressed in the title. 34. Purdy Sault Ste. Marie, act in its entirety. It is there exThe point is thus stated in his brief: (Mich.) 155 NW 597; Allen v. Milla pressly provided that the adjudica"The act in its title prescribes only ville, 87 N. J. L. 356, 95 A 130. tion of invalidity of any part of the the liability of an employer to make 35. Adams v. Acme White Lead, act shall not affect the validity of compensation for injuries received etc., Works, 182 Mich. 157, 148 NW the act as a whole or any other part by an employe, &c., and does not 485, LRA1916A 283 and note [dist thereof. This means that the legisprovide for compensation by
lature intended the act to be enforced employer to the next of kin of an NE 336, LRA1916A 279, AnnCas as far as it may be, even though it employe who is killed in the course 1915C 919, and In re Johnson, 217 might not be valid' in its entirety. of his employment.' We are unable Mass. 388, 104 NE 735, on the ground It was competent for the legislature to adopt defendant's view. It seems that there was in Massachusetts no to provide. Anything it could to us that the object of the act is constitutional provision similar to have eliminated itself and left an single-to provide for the liability Mich. Const. art 5 § 21].
operative act, can be eliminated by of an employer to make compensa- 36, Evanhoff v. State Industrial the courts without destroying the tion for injuries received by an em- Acc. Commn., 78 Or. 503, 154 P 106 entire act, if it is the will of the ploye. Whether the compensation (where the court, however, was in- legislature that the remaining parts is to be made to the employe him- fluenced by the construction fol- of the act shall stand after such self or to those who suffer pecu- lowed and acquiesced in by the legis- elimination, So here, if it be true ntary loss by reason of his injuries, lature, and by the disorganization of that the legislature has gone too far it is equally a liability of the em- public business and the destruction in this direction, and has attempted ployer. Whether the injuries result of private pecuniary rights which to include within its benefits certain in death or not, they are naturally would follow a declaration of the employees who cannot be included and properly spoken of as injuries unconstitutionality of the act). without including employees genreceived by an employe. The ex- 37. Peet v. Mills, 76 Wash. 437, erally, these can be omitted in the pression “fatal injuries' is not un- 136 P 685, LRA1916 A 358 and note, administration of the act without common improper. That this AnnCas19151 154 and note (holding the necessity of nullifying the entire single object of providing for the that L.  C 74 precluded an act. But whether any such workliability of the employer is
injured employee men are so improperly included, we pressed in the title sufficiently ap- / against the president of an employer shall not here determine. The quespears from a mere reading of that corporation individually).
tion can best be met when it arises portion of the title we have already 38. See Statutes [36 Cyc 976). during the course of the act's adquoted." Huyett v. Pennsylvania R. 39. Consumers' Lignite Co. V. ministration"). Co., 86 N. J. L. 683, 92 A 58.
Grant, (Tex. Civ. A.) 181 SW 202; 41. U. S.--Meese v. Northern Pac. 31. See Statutes [36 Cyc 10171. Memphis Cotton Oil Co. v. Tolbert, R. CO., 206 Fed. 222 (rev on other 32. Mackin
Detroit-Timkin (Tex. Civ. A.) 171 SW 309, 313 (where grounds 211 Fed. 254, 127 CCA 622 Axle Co., 187 Mich. 8, 153 NW 49; the court said: "If the sections of (rev U. S.)]. Memphis Cotton Oil Co. v. Tolbert, the act authorizing the creation and Iowa.--Hunter v. Colfax Cons, Coal (Tex. Civ. A.) 171 SW 309.
regulation of Texas Employers' In- Co., 154 NW 1037. [a] Ilustrations.-(1) "The par- surance Association are unconstitu- Mich.-Mackin Detroit-Timkin ticulars pointed out in which it is tional, because not authorized under Axle Co., 187 Mich. 8, 153 NW 49. claimed the act contains provisions the general incorporation law of this N. H.-Wheeler V. Contoocook not referred to or comprehended in state, the sections of the law in- Mills Corp., 77 N. H. 551, 94 A 265. the title are that it repeals an ex- volved in this suit are not so con- N. J.-Sexton v. Newark Dist, Tel. isting statute relative to contracts nected with the insurance sections Co., 84 N. J. L. 85, 86 A 451 [aff 86 with attorneys for services, creates as to render void the sections relat- N. J. L. 701, 91 A 1070]. a right of action against a third ing to contributory negligence, as- R. I.-Sayles v. Foley, 96 A 340. party by the employer of the in- sumed risk, and fellow servant"). [a] Illustrations.-(1) An jured. subrogating the employer to compare Sexton vs Newark Dist. Tel. ployee who has had an opportunity the rights of the employee, and re- Co., 84 N. J. L. 85, 91, 86 A 451 [aff to elect between his common-law quires the injured employee to seek 86 N. J. L. 701, 91 A 1070] (where action and the compensation procompensation from
insurance the court said of P. L. (1911] p 134; vided for by the act, his employer company, instead of his employer. "Sections 1 and 2 providing two en- having elected to come under the
We think the objections tirely different schemes-one regu- act, cannot question the validity of urged to the title of this act are not lative of the common law, and the the act on the ground that the emtenable under the decisions of this other purely the creature of statute ployee of a nonaccepting employer and other courts." Mackin De- -are so interwoven and constitute has no such election, since the comtroit-Timkin Axle Co., 187 Mich. 8. so completely one single plan that it plaining employee cannot raise such 22, 153 NW 49. (2) “We have con- is unlikely that if section 1 is bad question in the absence of an
included that the subject of the act is the legislature intended that section vasion of his rights by the provision stated in the title, and that there is 2 should stand. Indeed, the contrary | attacked. Sayles v. Foley, (R. I.), 96 not more than one subject contained is expressly provided in paragraph A 340. (2) An employer who has therein. The ends to be reached are 24 of the act. It is therefore neces- not accepted the act cannot complain more than one, but all relate to the sary to consider the objections' of alleged discriminations and in
the grievance of the employee. It has, however, been beld that the employer may urge that an insurance act is unconstitutional as to the employee, when, if such contention is true, the employer would be deprived of the exemption from further liability
acquired by him through payment of the prescribed premium into the state fund. 43
 0. Violation of Treaty Obligations. Provisions of state compensation acts in contravention of treaties of the United States are void.44
IV. CONFLICT OF LAWS  A. Contract within and Injury outside weight of authority is to the effect that the state of Jurisdiction. While it has been held that the courts will apply the domestic compensation law operation of a compensation act will not be ex- in the case of an injury received outside of the tended to injuries received outside of the state state, where the contract of employment was enin the absence of a plain legislative intent,45 the tered into within the state, except perhaps in a equalities in the provisions made for moneys appropriated by the state, tories of the other the most constant the regaining of common-law
de- under the provisions of the act in security and protection for their perfenses by accepting. Wheeler V. question, his financial burdens will sons and property and for their Contoocook Mills Corp., 77 N. H. 551, be increased. Evanhoff v. State In- rights, including that form of pro94 A 265. (3) An employer who has dustrial Acc. Commn., 78 Or, 503, 154 tection granted by any state or na, not accepted the act cannot urge P 106.
tional law which establishes a civil that it is unconstitutional because it 42. Jeffrey Mfg. Co. v. Blagg, 235 responsibility for injuries or for denies to employers who accept the U. S. 571, 35 Sct 167, 59 L. ed. 364; death caused by negligence or fault provisions of the law a jury trial on Hunter v. Colfax Cons. Coal Co., and gives to relatives or heirs of the the issue of the damages.
Wheeler (Iowa) 154 NW 1037; Jensen V. injured party а right of action, V. Contoocook Mills Corp., 77 N. H. Southern Pac. Co., 215 N. Y. 514, 109 which right shall not be restricted 551, 94 A 265. (4) An employee can- NE 600, LRA 1916A 403, AnnCas on account of the nationality of said not question the constitutionality of 1916B 276.
relatives or heirs, and shall enjoy in the act on the ground that it dele- [a] Illustrations.-(1) "The stress this respect the same rights and gates legislative power by permitting of the present argument, in the brief privileges as are or shall be granted the employer and the employee to and at the bar, is upon the feature to nationals, provided that they subprovide a benefit scheme in lieu of of the law which takes away the de- mit themselves to the conditions imthe compensation provided by the fense of contributory negligence | posed on the latter,' a clause in a act, as provided for by Pub. L. from establishments employing five state compensation act, providing (1912) c 831 art 4, where such em- or more and still permits it to those that compensation shall not apply to ployee and employer have made no concerns which employ less than alien dependents not residents of the such agreement. Sayles V. Foley, five. Much of the argument is based United States, is invalid, but that (R. I.) 96 A 340. (5) Adult em- upon the supposed wrongs to the such a treaty is not retroactive). ployees cannot question the consti- | employé, and the alleged injustice 45. In re Gould, 215 lass. 480, tutionality of the act (Pub. L.  | and arbitrary character of the legis- 102 NE 693, AnnCas1914D 372 and C 831), on the ground that it un- lation here involved as it concerns note. justly discriminates between employ: him alone, contrasting an employé [a] Reason for rule. "These ers and deprives minor employees of in a shop with five employés with various acts, although having cerproperty without due process of law, those having less. No employé is tain features in common, neverthesince one questioning an act as vio- complaining of this act in this case. less differ widely in many essential lative of the federal constitution The argument based upon such dis- aspects. Some are compulsory. must show that the alleged unconsti- crimination, so far as it affects em- Some prohibit contracts for a differtutional feature of the law injures ployés by themselves considered, ent form of compensation, and make him, in order to raise the question cannot be decisive; for it is the well- criminal under severe penalties failof its constitutionality. Sayles v. settled rule of this court that it only ure to comply with their terms. Foley, supra.
(6) One not a parent hears objections to the constitution- Some provide for strict State insurоr a minor cannot assert that ality of laws from those who are ance, while others do not. The parent is deprived of his right of themselves affected by its alleged amount of compensation afforded and action for injury to his minor child. unconstitutionality in the feature the circumstances under which it is Mackin v. Detroit-Timkin Axle Co., | complained of." Jeffrey Mfg. Co. v. to be awarded differ. The diversity 187 Mich. 8, 153 NW 49. (7) An Blagg. 235 U. S. 571, 576, 35 SCt 167, of public policy already manifested allegation that a provision that, "in 59 L, ed. 364. (2) "In this, an appeal between the several States is considthe employment of minors, section 2 by an employer, it is urged that the erable. To say that such acts are shall be presumed to apply unless right of rejection by the employé is intended to operate on injuries rethe notice be given by or to the unduly clogged: First, because of ceived outside the several States enparent or guardian of the minor" is the requirements concerning the
acting them would give rise to many void will not be considered when it form and verification of the notice; difficult questions of conflict of laws. appears that decedent was thirty- and, second, because the sufficiency
It would require a large defour years old at the time of his of these is' to be passed on by the pendence upon the comity of other death. Sexton V. Newark Dist. Tel. commissioner; the act is challenged States in enforcing our act and in Co., 84 N. J. L. 85, 89, 86 A 451 [aff because section 3 authorizes the com- refraining from enforcing their own 86 N. J. L. 701, 91 A 1070). (8) missioner to return a rejection by as to a subject which commonly is “Now, speaking as to the employés the employé if it fails to comply, in wholly under the control of the seyexcluded, their exclusion is either form or verification, with the re- eral States, and with which, it has the granting of a privilege denied to quirements of the act, it being urged been pointed out, a substantial numothers or the imposition of a burden that this is power to construe con
ber have already manifested a purfrom which others are relieved. If tracts against their terms. And pose to deal by a new and special the last, it suffices that no excluded there is a contention that the act is legislation. No court of any sister person is here complaining, and that void because it interferes with the State, so far as we are aware, has appellant has no grievance because exclusive jurisdiction of the federal had occasion to pass upon the preothers are unfairly treated. Speak- courts of actions for injuries of em- cise questions here presented." In ing from the angle of those included, ployés of railroads, in that injuries re Gould, 215 Mass. 480, 487, 102 NE their inclusion is either a burden to such employés are not excepted 693, AnnCas1914D 372. not placed on others, or a privilege in the act. Section 22 of the act
Conn.-Kennerson V. Thames not shared by others. If the last, guards against this very interfer- Towboat Co., 89 Conn. 367, 94 A 372, there is no grievance. One may not ence with federal law. But, in any
LRA1916A 436 and note. well complain of a discrimination view, the alleged interference does N. J.--Rounsaville v. Central R. consisting of his being treated better not concern appellant." Hunter V.
Co., 87 N. J. L. 371, 94 A 392. than others." Hunter V. Colfax Colfax Cons. Coal Co., (Iowa) 154 N. Y.-Post V. Burger, 216 N. Y. Cons. Coal Co., (Iowa) 154 NW 1037, NW 1037, 1048.
544, 111 NE 351, AnnCas1916B 158 1053. (9) "Upon the argument much 43. Jensen v. Southern Pac. Co., and note; Spratt v. Sweeney, etc., Co., was said concerning the constitu- 215 N. Y. 514, 109 NE 600. LRA1916 A 168 App. Div. 403, 153 NYS 505. tionality of a legislative act 403 and note, AnnCas1916B 276.
R. I.–Grinnell v. Wilkinson, 98 A pelling contribution from one person, 44. De Biasi v. Normandy Water
103. or employer, to be used in paying Co., 228 Fed. 234, 235 (holding, with W. Va.-Gooding v. Ott, 87 SE 862. for the negligence of another.
reference to the New Jersey act of Que.-Vincent v. Grand Trunk R. That is a defense only to be made July 4, 1911, § 2 par 12. amended by Co., 45 Que. Super. 353. by those obliged to contribute to, or the act of April 17, 1914 (P. L. 499), "The place where the accident octhose charged with the duty of ad- that, under art 1 of the treaty be- curs is of no more relevance than ministering, the funds contributed." tween the United States of America is the place of accident to the asMeese v, Northern Pac. R. Co., 206 and his majesty the king of Italy, sured in an action on a contract of Fed. 222, 225 (rev on other grounds concluded on Febr. 25, 1913, amend- accident insurance. or the place of 211 Fed. 254, 127 CCA 622 (rev U. ing art 3 of the treaty of Febr. 26, death of the assured in an action on S.)).
1871, which reads, "The citizens of a contract of life insurance." Roun[b] A taxpayer may urge that, by each of the high contracting parties saville v. Central R. Co., 87 N. J. L. the unlawful expenditure of
the shall receive in the states and terri- I 371, 374, 94 A 392.
case where it is intended that the contract shall enforce is based on contract and not on tort.48 No
47 be wholly performed without the state,
distinction is made between the optional and the theory that the obligation which it is sought to compulsory statutes. 19 The intention that a com[a] Reasons for rule.-(1) "If | pensation, and that the effect of our the employment within
act. our Act intends its contracts of em- decision may be to allow a double Ordinarily a statute has no extraterployment to include compensation recovery, we can only say that ques- ritorial effect. But where the regufor injuries occurring only within tions of that kind had better be lar service of the employé is being our jurisdiction, it manifestly de- dealt with as they arise, and in the performed in the state, and, as an feats its own ends. In that case the light of the exact scheme of com- incident to it, he goes over the state employer may not charge to the in- pensation that may be involved. It line temporarily, we have held that dustry the compensation for injuries is enough for the present to say such temporary absence from the occurring without the State, and the that recovery of compensation in two state does not relieve the employer employee or his dependents may not states is no more illegal, and is not from liability under this statute." collect the same. Neither employer necessarily more unjust than recov- Gardener v. Horseheads Constr. Co., nor employee can know what portion ery upon two policies of accident or 156 NYS 899, 901. of this period of employment will be life insurance. Rounsaville v, Cen- 48. Kennerson Thames Towsubject to the provisions of the Act, tral R. Co., 87 N. J. L. 371, 374, 94 A boat Co., 89 Conn. 367,94 A 372, and no provision for insurance of 392.
LRA1916A 436; Post V. Burger, 216 this liability will be practically pos- [c] Practical difficulties may be N. Y. 544, 556, 111 NE 351, AnnCas sible, since it may not ordinarily be overcome.-"We appreciate that any 1916B 158; Grinnell Wilkinson, known what part of the service will determination that may be made of (R. I.) 98 A 103; Gooding v. Ott, (W. be in and what part out of the State, the question under consideration Va.) 87 SE 862. or in what jurisdiction the service [extra territorial effect) will result "If the relation between the emwill be performed, in industries and
in some practical difficulties in ad- ployer and employee is contractual commercial enterprises engaged in ministering the statute, but the diffi- the contract should be construed as intrastate and interstate employ- culties that will be met with in ad- binding upon both parties thereto ment. The State boundary is not ministering the statute construed as without limitation as to territory the limit of very many businesses. requiring a contract binding upon
the same as all ordinary contracts, To subject them to the laws of the both parties without limitation will based upon mutual agreement inde. many jurisdictions in which they be less burdensome than the difficul- pendent of statutory duty." Post v. may be engaged will be especially ties that would be experienced with Burger, supra. burdensome to them, and involve a contrary construction of the stat
(a) Contrary ruling
distinthem probably in greater expense ute. The practical difficulties that guished. "We must accept the conand liability and far greater difficul
may be met in administering the struction accorded the ties
setts Act by its Supreme Judicial Equally hard will it prove to the em
substantially overcome by adopting Court [In re Gould, 215 Mass. 480, ployee since he must pursue his rem
rules for the commission or perhaps 102 NE 693, AnnCas1914D 372). It edy in the State of the accident, or by further legislation.” Post V. may be well, however, to point out the Federal court applying that
Burger, 216 N. Y. 544, 559, 111 NE that the court does not state that its State's law, and thus he may be 351, AnnCas1916B 158.
Act is contractual in character. brought under any one of many dif
47. Gardener V. Horseheads That, as we have indicated, is of ferent compensation Acts, with
Constr. Co., 156 NYS 899 (holding final importance in the conclusion whose provisions he cannot hope to that where an employer, with an be familiar; some Acts contractual
we reached concerning our own Act, oflice in New York and carrying in. Then, too, under the Massachusetts in character, some compulsory, some
surance as to employees engaged in Act, the employee is merely the beneoptional, and some ex delicto; and he
work in the state, under the work- ficiary under a contract between the may find he has forfeited the benefit of the foreign Act through failure
men's compensation law [Consol. L. employer and the insurer; with us
C 67], the pay rolls on jobs outside to comply with its provisions.
the employer and employee enter A reading of the several Acts now in
the state not being used as a basis into a contract relation. In its referforce convinces us that these diffi
for such insurance, employed dece- ence to and comment upon certain
dent, while he was out of the state, culties are not imaginative, but im
sections of their Act, the court says to engage
in the employment Kennerson minent
that it actualities."
must be found within the Thames Towboat Co., 89 Conn. 367,
which he was engaged in Pennsyl- Act from 'unequivocal language,' or 375, 94 A 372, LRA1916A 436. (2) vania at the time of his death, com- 'plain and unmistakable words, that
the Act was intended to relate to “It was the intention of the legis- pensation could not be awarded, allature to secure such injured work
though the contract be regarded as injuries without the Commonwealth. men and their dependents from be
one made in New York); Gooding v. We have adopted a broader rule. We
Ott, (W. Va.) 87 SE 862. Compare coming objects of charity, and to
read our Act in the light of the purmake reasonable compensation for
Johnson V. Nelson, 128 Minn. 158, pose, subject-matter, and history of injuries sustained or death incurred
150 NW 620 (where, without discus- the Act, to determine whether it exby reason of such employment a part
sion of the applicability of the Min- pressly or by reasonable inference of the expense of the lines of busi
nesota law, the court held that the intended to include in its contract
Wisconsin compensation act was ness included within the definition
injuries without our jurisdiction. of hazardous employments as stated
properly pleaded in defense to a tort This is our ordinary rule in the interin the act.
The danger of
action in Minnesota under the fol- pretation of statutes. The Massainjured workingmen and their de
lowing facts: Plaintiff, on April 2, chusetts court states that “the subpendents becoming objects of charity
1913, entered defendant's employ on ject of personal injuries received by is just as great when an accident
railroad construction work. He å workman in the course of his emoccurs outside the boundaries of the
worked at two different places in ployment is within the control of state as it is when it occurs within
Minnesota On June 26 of the same the sovereign power where the inthe state. The interests of the state
year he was asked to go to Wiscon- jury occurs. And it argues that, if in it citizens is just as great in one
sin on similar work there being done the Act had intended employers and case as in the other. The provisions by defendant. He accepted, and was employees from different States to in the act making the insurance of
injured four days thereafter. His carry their domiciliary personalemployers a part of the scheme and original hiring was for no definite injury law with them into other purpose of the act are to make cer
time and for no particular place. On jurisdictions, it would have tain that the compensation provided
June 10 defendant had elected to pressed its intent in unambiguous by the act will be paid. The failure accept the provisions of the Wis- words. This argument concerns to provide such insurance
takes consin Workmen's Compensation Act proceeding to enforce an ex delicto away in part the benefits that the [St. (1913) $ 2394-8]).
claim, not one for compensation by employer receives pursuant to the [a] Permanent and temporary ab- way of contract. It is also argued act. The employer in this case as- sence distinguished.-"In this case that, if an Act is given extraterrisented to the contract of employ- the decedent had not been employed torial force, similar effect must be ment under the act to the extent of by the appellant in the state since given to like laws of other States. providing insurance with the insur- 1912. His employment had not been if contracts of employment cover ance carrier. The act, in view of its continuous, but had been from time compensation for injuries outside humane purpose, should be construed to time for certain jobs which were the State, recovery for these will be to intend that in every case of em- being performed entirely without the governed by the usual rules for the ployment there is a constructive con- state. The contract of employment construction and enforcement of all tract between the employer and em- did not contemplate any work by contracts. We should give similar ployee, general in its terms and him within the state; no such work effects to contracts of like character unlimited as to territory, that
the was done. The statute in question to those before us, though made employer shall pay as provided by is intended to regulate the relations under a compensation Act of another the act for a disability or the death between the employer and employé jurisdiction, provided they did not of the employee as therein stated. in hazardous employments within conflict with our law or public polThe duty under the statute defines the state, and to protect the employé icy, and the machinery provided for the terms of the contract." Post V. within the state from the ordinary the ascertainment and collection of Burger, 216 N. Y. 544, 553, 111 NE risks of the employment, and to the compensation could be used in 351, AnnCas1916B 158.
charge those risks upon the ultimate our jurisdiction." Kennerson V. [b] Double recovery -"There is consumer. The mere fact that an Thames Towboat Co., 89 Conn. 367, no proof in the pending case as to employé is engaged by a resident of 380, 94 A 372. LRA1916 A 436. the law of Pennsylvania. If it be the state to go out of the state for Nature of obligation see supra § 4. said that the Pennsylvania law may service, and no service in the state is 49. Post v. Burger, 216 N. Y. 544, provide a different scheme of com- contemplated or done, cannot bring 111 NE 351, AnnCas1916B 158.
C. J. 2
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
the place where the injury is received, although the contract of employment was made in the state of the forum.54
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. 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,59 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
50. Kennerson V. Thames Tow- and courts within commonwealth; form a mere rule of evidence, is, in boat Co., 89 Conn. 367, 94 A 372, requiring hearings of committee on effect, a rule of substantive law. As LRA1916A 436.
arbitration to be held in city or such we deal with it. As we have 51. Kennerson Thames Tow- town where the accident occurred; already said, we find nothing in the boat Co., 89 Conn. 367, 94 A 372, reqairing report to accident board New York contract inconsistent with LRA1916 A 436. But see In re Gould, within forty-five hours; giving di- the contract implied by the New 215 Mass. 480, 484, 102 NE 693, Ann rectors of insurance association ac- Jersey statute." American Radiator Cas1914D 372 and note (where the
to premises of subscribers; Co. v. Rogge, 86 N. J. L. 436, 438. 92 court said: “In the absence of un- making agreements to waive com- A 85, 94 A 85. (2) Of the language equivocal language to the contrary, pensation invalid; exempting pay- just quoted the court said in a later it is not to be presumed that stat- ments from debts of employee; fail- case: "We said that the statute utes respecting this matter are de- ure to make express provisions as to stated the obligation in terms of the signed to control conduct or fix the foreign accidents. In re Gould, 215 law of evidence, and that rules of rights of parties beyond the terri- Mass. 480, 102 NE 693, AnnCas1914D evidence are rules of procedure, but torial limits of the State"). 372,
we added that the view was technical [a] Matters held
to show 52. Post v. Burger, 216 N. Y. 544, and that we did not rest on it alone. contrary intention.-(1) Conn. Acts 111 NE 35], AnnCas1916B 158.
It would have been better to omit (1913) C 138 pt B § 7, requiring 53. Post v. Burger, 216 N. Y. 544, the word 'alone;' but no ambiguity the employer to furnish medical and 111 NE 351. AnnCas1916B 158.
can arise in view of what follows. surgical aid; § 23, requiring injured 54. Johnson v. Nelson, 128 Minn. We said that the real object of the employees to submit to examination 158, 150 NW 620.
statute was to create an irrebutable by a reputable physician; $ 17, giy- [a] Plaintiff cannot plead igno- presumption, that such a presumping each compensation commissioner rance of the laws of the state tion was in effect a rule of substanjurisdiction of claims and questions wherein his employment was per- tive law, and as such we dealt with arising in his jurisdiction; § 22, re- formed and under which his right to it. The whole opinion shows that quiring voluntary agreements be- redress for the injury must be as- the case was rested upon the public tween employers and injured em- serted. Johnson v. Nelson, 128 Minn. policy of New Jersey." Rounsaville ployees to be filed with the clerk of 158, 150 NW 620.
v. Central R. Co., 87 N. J. L. 371, the superior court for the county in
55. Schwartz V. India Rubber, 373, 94 A 392. which the injury occurred; $ 26, re- etc., Works Co.,_(1912] 2 K. B. 299, [b] The English act, however, quiring awards to be similarly filed; 5 BWCC 390; Tomalin v. Pearson, does not apply to the case of a forand § 27, authorizing appeals to the  2 K. B. 61, 2 BWCC 1; Hicks eign seaman on a foreign vessel who superior court for the county in which v. Maxton, 1 BWCC 150. See also is injured in an English port. Panathe injury was sustained. Kenner-Griffiths v. Warren, 6 WCC 65 (con- gotis V. Pontiac,  1 K. B. 74, son v. Thames Towboat Co., 89 Conn. fining to Great Britain the operation 5 BWCC 147. 367, 94 A 372, LRA1916 A 436. (2) of the act of 1897).
59. American Radiator Co V. "The only sections of the act that 56. Schweitzer v. Hamburg-Amer-Rogge, 86 N. J. L. 436, 92 A 85, 94 are claimed by the appellants as ikanische, etc., Co., 78 Misc. 448, 138 A 85. showing that it was not the inten- NYS 944.
“The liability of the employer to tion of the legislature to give the 57. Vincent V. Grand Trunk R. make compensation is an obligation act extraterritorial effect are section Co., 45 Que. Super. 353.
superimposed upon the original con2, subdivision 8, section 104 and sec- 58, West Jersey Trust Co, v. Phil- tract as a condition of its performtion 114. Section 2, subdivision 8 adelphia, etc., R. Co., 88 N. J. L. ance in New Jersey, and it is con[excluding vessels in interstate com- 102 95 A 753; Davidheiser v. Hay, tractual in character because either merce) was doubtless drawn to Fdy., etc., Works, 87 N. J. L. 688, 94 party may escape the obligation by avoid a conflict
with the Federal A 309; American Radiator Co. v. giving notice that he will not be Employ rs' Liability Act. The lan- Rogge, 86 N. J. L. 439, 92 A 85, 94 bound thereby, and because it does guage of that subdivision should not A 85. Compare Sabella v. Brazileiro, not arise out of any wrong-doing. be given an effect and meaning con- 86 N. J. L. 505, 91 A 1032 (where But the addition of this contractual trary to the general policy of the evidence was held to show that long- obligation by statute does not affect act as shown by reading it as shoreman's contract was made within the contract of hiring; that is still whole. Section 104 (as to inspection state).
enforced as far as it goes by its of plants by commission) is the same (a) Rule of procedure.-(1) "The
terms." American Radiator Co. in terms as it would have been had statute states the obligation in Rogge, 86 N. J. L, 436, 439, 92 A 85, there been an
express provision terms of the law of evidence; the 94 A 85. making a contract concededly ap- contract of hiring is presumed to 60. American Radiator
Co. plicable to employees in all parts of have been made with reference to Rogge, 88 N. J. L. 436, 439, 92 A 85, the world. Section 114 [application section 2, and in the absence of ex- A 85. of statute to
persons engaged in press statement or written notice, [a] Discussion of rule.--"We interstate commerce) is one of lim- the parties are presumed to have find no evidence in this case of any itation, intended to obviate a
accepted the provisions of section 2. term in the New York contract that struction of the act violative of the Rules of evidence are rules of pro- prohibits the applicability of the Constitution of the United States. cedure, and procedure by well-settled New Jersey statute. If there were, (Jensen v. Southern Pac. Co., 215 N. principles is governed by the law of the parties could not by their agreeY. 514, 109 NE 600, LRA1916 A 403, the forum. This view, it must be ment prevent New Jersey from reguAnnCas1916B 276).' Post V. Burger, confessed, is somewhat technical, lating the conduct of its own indus216 N. Y. 544, 552, 111 NE 351, Ann and we do not rest on it alone. The tries and from prescribing as one of Cas1916B 158.
real object of the statute was to the terms upon which the perform[b] Matters held to show con create an irrebuttable presumption ance of a foreign contract of hiring trary intention. Necessity of exam- in the absence of express statement shall be permitted in this state, the ination of injured employee by physi- or notice, and the creation of a pre- implication by law of a contract for cian of commonwealth; procedure sumption irrebuttable, except in
compensation to the workman, It is sections dealing wholly with boards these ways, although it may be in open to the employer under a New
is authority, however, apparently in support of a to the public policy of the forum ;63 and it has contrary view holding that, where a contract of been held immaterial that the defendant employer employment is made in a foreign country under the is a foreign corporation licensed to do business in law of which the remedy of the employee through the state of the forum.64 Further, the courts of a a compensation act is exclusive, the foreign law state in which a compulsory compensation act exists will control in an action by the employee for an under which, subject to certain exceptions, civil injury received within the jurisdiction.si
causes of action for personal injuries and the juris[$ 30] C. Place of Contract and of Injury Both diction of the courts over them are abolished, will outside of Jurisdiction. Where neither the place not refuse to enforce an employee's common-law of the contract of employment nor that of the in- right of action for an injury received outside the jury is within the state, the courts will recognize state.es the law of the place of the injury62 unless contrary York contract to prevent the opera- H. & B. American Mach. Co., 35 R. of the employer, and not under the tion of section 2 if he wishes by I. 321, 87 A 1, LRA1916A 428; Reyn- | 1911 statute, and it appears that notice; if he fails to give the notice, olds y. Day, 79 Wash. 499, 140 P 681, nothing was done by either plaintiff and undertakes to perform the con- LRA1916A 432.
See Johansdotter or defendant to avoid the application tract in New Jersey, he voluntarily Canadian Pac, R. Co., 47 Que of the compensation plan provided subjects himself to our law and is Super. 76 (holding that action for by such statute, the complaint governed thereby.
If we as- might be maintained in Quebec un- will be dismissed. Wasilewski V. sume in favor of the defendant that
der the law of Alberta, where the Warner Sugar Refining Co., 87 Misc. there is an implied term in the New employee was in the service of a 156, 149 NYS 1035. (6) Under the York contract adverse to the Work-corporation having its principal place New Jersey Act (P. L. p 134), a men's Compensation act, we are then of business in Montreal).
widow, administratrix of the estate face to face with the question [a] Applications of rule.-(1) of a servant, a resident of New whether that act indicates the pub- The provision of Mass. Acts (1911) | York, killed in the course of his emlic policy of New Jersey, which will € 751, requiring a notice in writing ployment under contract made in the be enforced even as against a con- from the employee to the employer state of New Jersey. could not retract made in another state. We at the time of employment, that he cover in
York the minimum think it does. The legislation marks claims his common-law right of lump sum of compensation in view a complete change in the policy of action for personal injuries, which of his weekly wages provided by the the state, a change so compiete that otherwise shall be deemed to be New Jersey act. where a court of pecuniary liability in the class of waived, may be asserted in defense
common pleas of New Jersey had cases covered by the act, rests not to the employee's action at common not fixed a lump sum of compensaupon any fault of the defendant, but law, in Rhode Island, for damages tion. McCarthy v. McAllister Steamupon the simple fact of the relation- for an injury sustained in Massachu- boat Co., 158 NYS 563. (7) Where ship of employer and employe. setts, in which state the contract of an employee injured in Kansas had The act makes no distinction be- employment was entered into and elected to take under the Kansas tween cases where that relationship plaintiff entered on and continued compensation
and afterward is created by contract made in his employment. Pendar v. H. & B. made a contract in Missouri with a New Jersey and a contract made in American Mach, Co., 35 R. I. 321, 87 firm of Missouri lawyers to proseanother state. The language of sec- A 1, LRA1916A 428. (2) The New cute his claim for damages by an tion 9 is general; it covers every Jersey Employers' Liability Act of action at law, the attorneys could contract of hiring.' The policy of April 4, 1911. (P. L. [1911) p 134), acquire no lien by a notice to the the act would be thwarted if it were defining the liability of an employer employer under the Missouri statute, applicable in the case of some em- for injuries received by an employee, since under the Kansas compensaployes who were hired in this state and providing that contract of tion act the cause of action on which and inapplicable to employes of the hiring shall be presumed to have the lien was claimed had ceased to same employer working side by side been made under the act, unless a exist on the employee's election to who were hired in another state. contract of employment or a notice take under it. Piatt v. Swift, 188 Compensation is secured to work- sent by either party to the other Mo. A. 584, 176 SW 434. men, regardless of the employer's shall otherwise provide, is elective, 63. Wasilewski v. Warner Sugar fault, because the legislature has and becomes compulsory on the par- Refining Co., 87 Misc. 156, 161, 149 thought such security to the advan- ties only in the event that neither NYS 1035 (where the cou said: tage of our industries and our work- | disaffirms it, and is valid, and gov- "An adjudication precisely in point men. The public policy is not based erns an action for an injury to an is that in Albanese v. Stewart, 78 upon
loose notions of the employee received in New Jersey, Misc. 581, 138 NYS 942, in which, as court based upon the opinions of our where neither party disaffirmed the here, the plaintiff sued in New York favorite newspaper or our political statute. Albanese v. Stewart, 78 Misc. for injuries received while he was predilections, but upon the declared 581, 138 NYS 942. (3) An action under employed in New Jersey. The dewill of the legislature which has the the New Jersey Compensation Act of fendant pleaded the New Jersey right to determine our public pol- | April 4, 1914 (P. L. (1914) p. 141) $ 18. Compensation Act of 1911, and the icy." American Radiator Co. v. providing that in case of dispute, or plaintiff demurred to the defenses Rogge, 86 N. J. L. 436, 438, 110, 92 of failure to agree on a claim for com- based thereon. Mr. Justice Cohalan, A 85, 94 A 85.
pensation, either party may submit in overruling the demurrer, held that 61. Schweitzer v. Hamburg-Amer- the claim to the judge of common the New Jersey statute determined ikanische, etc., 78 Misc. 418, 138 pleas of such county who would have the plaintiff's rights and that the NYS 944. See also Schweitzer v. jurisdiction in a civil case, cannot be conceptions of public policy declared Hamburg-Amerikanische, etc., 149 brought in the supreme court in New in Ives v. South Buffalo R. Co., 201 App. Div, 900, 134 NYS 812 (where York, although, by reason of defend- N. Y, 271, 94 NE 431, 34 LRANS
it was held that a defense setting up ant's removal of its place of busi- 162, AnnCas1912B 156, did not bar 'the foreign law must be replied to). ness to New York, the state in which the New Jersey act of 1911 from full
"A foreign law to which both em- it was incorporated, personal service recognition in the courts of New ployer and employee, engaged in in- cannot be had on it in New Jersey. York"). See Post v. Burger, 216 N. terstate and foreign commerce and Lehmann V. Ramo Films, 155 NYS Y. 544, 111 NE 351, AnnCas1916B transportation, have subscribed and 1032. (4) The New Jersey Work- 158 (where the injury occurred outupon the basis of which the contract men's Compensation Act (P. L. side of the state, although the conof employment was made and  p 136) § 2 subd 9, providing tract was made within it). tered into, where the cars or ships for the recovery of compensation for 64. Hamm v. Rockwood Sprinkler of the employer enter our state and an injury to or the death of a serv- Co., 88 N. J. L. 564, 97 A 730. in or upon which while within our ant, and declaring that every con
65. Reynolds v. Day, 79 Wash. borders an accident Occurs to the tract of hiring made subsequently to 499, 140 P 681, LRA1916A 432. employee through his employer's the taking effect of the act shall be [a] Reason .for rule.-"In order negligence, particularly where the presumed to have been made with to make the common law remedy so contract of employment provides for reference thereto, applies only where contrary to the public policy of this a fixed compensation in case a speci- the contract of hiring is made in state that it will not be enforced as fied injury to take the place of a New Jersey, and the complaint in an a matter of comity, it must appear right of action at law and which is action for the death of a servant that the common law remedy will lawful both in the place where made which fails to set up a hiring made never be enforced under any circumand that in which the cause of action in New Jersey is demurrable. Pen- stances where the cause of action arose, should obtain recognition and sabene v. F. & J. Auditore Co., 155 arises in this state between our own enforcement here. To hold otherwise App. Div. 368, 140 NYS 266 [rev 78 citizens. We again impress the fact works not for benefit, but rather in- Misc. 538, 138 NYS 947]. (5) Where that the common law action may jury, to our interstate and foreign an employee's action for injuries re- still be maintained and its remedy commerce." Schweitzer v. Hamburg-ceived in New Jersey after the tak- enforced as against an employer in Amerikanische, etc., 78 Misc. 448, ing effect of the New Jersey Work- this state in all cases not specifically 451, 138 NYS 944.
men's Compensation Act (P. L. covered by the industrial insurance 62. Piatt v. Swift, 188 Mo. A. 584, (1911] p. 134, as amended by P. L. act. Moreover, the industrial insur176 SW 434; Wasilewski v. Warner (1911) p 763), is brought under the ance act, upon which the respondSugar Refining Co., 87 Misc, 156, 149 New Jersey Employers' Liability ents rely as the sole manifestation NYS 1035; Albanese V. Stewart. 78 Act of 1909 (P. L. [1909) p. 114), of a public policy of this state inMisc. 581, 138 NYS 942; Pendar v. regulating the common-law defenses imical to the common law action,