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[$ 31] D. State and Federal Laws - 1. Interstate Commerce Regulations. It is well settled that in so far as congress has exercised the power granted to it to regulate interstate commerce its action is exclusive and that any state compensation act in conflict must yield.66 It is also conceded that the states under the police power reserved to them have power to legislate in a manner affecting the instrumentalities of interstate commerce in so far as congress has not already occupied

the same field. In the application of these principles, however, the state courts have come to diametrically opposite conclusions, one line of authorities hold

ing that, notwithstanding the fact that the state compensation act may provide for compensation to the employee for accidental injuries sustained without negligence on the part of the employer or his agents, the field is entirely covered as to railroad employers by the Federal Employers' Liability Act 68 which fixes the responsibility of every common carrier by railroad toward its employees while engaged in interstate commerce, when any such employees are injured through the negligence of the officers, agents, or other employees of the carrier, but affords a remedy to the injured employee only when such negligence exists, and for that reason

Ce 6 y_Inle Second Employ

expressly excepts cases where the on state, there is now such an | hospital services and medicine for an employer is in default in his con- overpowering inconvenience as to injured employee, as they were retribution to the statutory insurance make it inexpedient to entertain ju- quired to do by the state workmen's fund. We have held that such pay- risdiction of a cause of action aris- compensation act, will not estop the ment is a matter of affirmative de- ing in another state which would employee from afterward asserting fense which must be pleaded and have been entertained but for that a claim under the Federal Employproved in order to defeat an action relief? Every trial of a case of

ers' Liability Act. Waters v. Guile, at law against the employer for in- which jurisdiction is taken by com- 234 Fed. 532. (2) The fact that in jury to his employee. Acres v. Fred- ity adds just that much to the bur- a statement concerning the accident erick, 79 Wash. 402, 140 P 370. This den of taxation. That fact, however, the employee has asserted that there negatives any such hostility of our is only valid as an argument against was no negligence will not estop him public policy to the common law the indulgence of the principle of from proceeding under the Federal action, even in cases arising in this comity in any case. It has no pecu- Employers' Liability Act, although state and within the purview of the liar application to cases of this negligence is an essential to a cause act, as to override the rule of comity kind." Reynolds v. Day, 79 Wash. of action thereunder, since such in favor of a cause of action arising 499, 506, 140 P 681, LRA1916 A 432. statement goes only to the credibilin a jurisdiction where there is no 66. U. S.-In re Second Employ-ity of plaintiff's subsequent asserstatute creating such a fund or pro- ers' Liability Cases, 223 U. s. 1, 32 tion of negligence. Waters v. Guile, viding any other remedy than that SCt 169, 56 L. ed. 327, 38 LRANS supra. of the common law. To construe 44; Grank Trunk R. Co. v. Knapp, Federal Employerg' Liability Act our statute as declaring such a pub- 233 Fed. 950.

see Master and Servant. lic policy as that claimed would, Cal.-Smith

Industrial Acc. Regulation and control of interaside from any rule of comity, ren- Commn., 26 Cal. A. 560, 147 P 600. state commerce generally see Comder it subject to the ban of $ 2, art. 111.--Staley v. Illinois Cent. R. Co., merce Cyc 419) 4 of the Federal constitution. It

268 Ill. 356, 109 NE 342, LRA1916A would deny to the citizens of other 450 and note.

ers' Liability Cases, 223 U. S. 1, 32 states the same privileges which it Minn.--Lindstrom V. Mutual SS. SCt 169, 56 L. ed. 327, 38 LRANS accords to our own citizens in like Co., 132 Minn. 328, 156 NW 669, LRA 44. circumstances." Reynolds v. Day, 1916D 935.

Cal.-Smith V. Industrial Acc. 79 Wash. 499, 507, 140 P 681, LRA N. J.-Grybowski V. Erie R. Co., Commn., 26 Cal. A. 560, 147 P 600. 1916A 432. 88 N. J. L. i, 95 A 764.

Ill. --Staley v. Illinois Cent. R. Co., [b] Antagonism of

policies.- N. Y.-Winfield v. New York Cent., 268 Ill. 356,109 NE 342, LRA1916A “The hostility of our law is not di- etc., R. Co., 216 N. Y. 284, 110 NE 450. rected against the remedial purpose 614, AnnCas1916A 817 [aff 168 App. Minn.- Lindstrom v. Mutual SS. of the common law. It extends that Div. 351, 153 NYS 499).

Co., 132 Minn. 328, 156 NW 669, LRA purpose to cases not reached by the "The argument of counsel for 1916D 935. common law action. The rule of the plaintiff in error that the Workmen's N. Y.-Winfield v. New York Cent., common law is contemned not be- Compensation act affects the em- etc., R. Co., 216 N. Y. 284, 110 NE cause it furnishes a remedy, but be- ployee 'solely as a member of


614, AnnCas1916A 817 [aff 168 App. cause the remedy is deemed inade- ciety and not as an instrument of Div. 351, 153 NYS 499); Jensen v. quate. This is far from a declara- society,' and is therefore within the Southern Pac. Co., 215 N. Y. 514, 109 tion of policy which would refuse police power of the State cannot be NE 600, LRA1916 A 403, AnnCas1916B that remedy where that remedy is sustained if Congress has by legis- 276. the only alternative. There is noth- lation acted on the 'subject matter' "The statute does not purport diing in the employers' liability act so or the particular subject' or in the rectly to regulate or impose a burhostile to the common law remedy 'same field' (as those terms are un- den upon commerce, but merely unas to deny any remedy where the derstood in the decisions)," Staley dertakes to regulate the relations circumstances will permit the appli- v. Illinois Cent. R. Co., 268 III. 356, between employers and employees cation of no remedy save that of the 360, 109 NE 342, LRA1916A 450. in this state. Šuch regulation may, common law. The assertion that our "It has been held by the United and no doubt does, indirectly affect law declares a policy utterly antag- States Supreme Court that the Fed- commerce, but to the extent that it onistic and opposed in its every no- eral Employers' Liability act of 1908 may affect interstate or foreign comtion and theory to the common law' superseded all state laws upon the merce it is plainly within the jurisis more rhetorical than exact. It is subject of the liability of carriers diction of the state, until congress true only in a qualified sense. Our by railroad engaged in

interstate by entering the field excludes state law is not opposed to the common transportation, to their workmen in- action." Jensen v. Southern Pac. law theory of recompense for injury. jured while employed in such com- Co., 215 N. Y. 514, 521, 109 NE 600, It is only opposed to the common merce.

Seaboard Air Line R. Co. v. LRA1916 A 403, AnnCas1916B 276. law assumption that a suit at law Horton, 233 U. S. 492, 34 SCt 635, 58 68. Act April 22, 1908 (35 U. S. furnished adequate recompense.

L. ed. 1962, LRA1915C 1, Annas St, at L. 65). Such a policy is certainly not con- 1915 B 475; in re Second Employers' 69. Smith v. Industrial Acc. trary to the giving of any remedy Liability Cases, 233 U. S. 1, 32 SCtCommn., 26 Cal. A.' 560, 147 P 600; merely because the only remedy pos- 169, 56 L. ed, 327, 38 LRANS 44. The Chicago, etc., R. Co. v. State Indussible is deemed inadequate. Our necessary corollary of this judicial trial Bd., (111.) 113 NE 80: Staley v. statute was never intended to de- declaration is that no state, by sub- Illinois Cent. R. Co., 268 Ill. 356, 374, clare that, because workmen injured sequent legislation, can impair or 109 NE 342, LRA1916A 450 and note. in this state receive compensation curtail in any degree the rights con

"Counsel on the one hand argue without suit, it is against the public ferred

upon the employee, or


that under the fair construction of policy of this state that workmen personal representative, or the lia- the Federal Employers' Liability act injured outside of

the state,

and bilities imposed upon the carrier, by as construed by these decisions the where the common law prevails, that statute." Grybowski v. Erie R. act covers the field of liability of should receive any compensation. Co., 88 N. J. L. 1, 5, 95 A 764.

common carriers by railroad for all Reynolds v. Day, 79 Wash, 499, 505, [a] Election.--A provision in a injuries occurring in inter-State 140 P 681, LRA1916A 432.

state compensation act, providing commerce, whether or not there has [c] Inconvenience and expense- that the filing of a claim under the been negligence on the part of the Unquestionably, before the indus- act shall constitute a release of de- employer, while counsel on the other trial insurance act was passed, our mands at law, will not prevent an side contend that the act covers only courts would have entertained this action by the employee under the liability of common carriers in interaction under the rule of comity so Federal Employers' Liability Act, State commerce when there has been defined. Can it be said, with any unless the proceedings have been such negligence. It is clear that show of reason, that, because our carried to the point where they there can be no 'recovery' under the courts have been relieved of much amount to a settlement. Waters V. Federal Employers' Liability act, of this character of litigation when Guile, 234 Fed. 532.

properly construed, in the absence arising between our own citizens [b] Estoppel.-(1) The fact that of negligence on the part of the emand on causes originating in our

defendants provided medical and | ployer, as that term is used in the








an employee who at the time of his injury was question of compensation in the absence of negliengaged in an employment connected with inter- gence, and for that reason, where the injured emstate commerce will be denied relief under the ployee seeks compensation, he may take advantage compensation act.?0 Other decisions hold that it of the state compensation act in so far as the inwas the intent of congress to legislate only on the jury sustained by him was not due to negligence." question of liability arising from negligence, and Inasmuch as the federal legislation with regard to that the states were left free to legislate as to the employees engaged in interstate commerce has not statute and in the decisions constru- ticular subject,' 'subject matter,' the employe as in tort, based upon ing the same. But if the question 'field' or 'chosen field' taken posses- common law negligence, or the failof negligence alone determines the sion of by the Federal Employers' ure to comply with some statutory applicability of the Federal law, Liability act was the employer's lia- provision for the safety of the emthen, before it can be held that such bility for injuries to employees in ploye; the other, so far as its seclaw is applicable, there must be a inter-State transportation by rail, tion 2 is concerned, is a compensafinal adjudication as to whether the and the real question, as clearly tion act purely contractual in charinjury resulted from negligence. Ob- stated in distinct terms in several acter, and requiring compensation viously, Congress legislated on more of the cases that we have quoted for injury or death to be made as than the subject of negligence.

from in deciding whether the Fed- an incident. of the mere relation and It also legislated on the subject of eral statute is applicable, is whether quite irrespective of any question of limitation when an action could be the injury for which the suit was negligence on the part of the embegun. (St. Louis, etc., R. Co. v. Hes- brought

sustained while the ployer." Hammill v. Pennsylvania R. terly, 228 U. S. 702, 33 SCt 703, 57 company and the injured employee Co., 87 N. J. L. 388, 390, 94 A 313. L. ed. 1031.) It also legislated as to

engaged in inter-State

(2) "In so far as employers and what

persons could recover under merce. The Federal Employers' Lia- employees working in this state are the Federal act and when an action bility act has taken possession of engaged in interstate commerce and would survive the death of the in- -has occupied-that field for the injuries

result to the employees jured person; (Taylor v. Taylor, 232 purpose of calling into play therein which are not the result of negliU. S. 363, 34' SCt 350, 58 L. ed. 638; this exclusive power of the Federal gence and are not occasioned by the Michigan Cent. R. Co.. Vreeland, government. Necessarily, all com

willful intention of the injured em227 U. S. 59, 33 SCt 192, 57 L. ed. mon or statute law of this State on ployee to bring about the injury or 417, AnnCas1914C 176;) also on the that subject has been superseded.

death of himself or another or result subject of assumed risk and con- The field of liability as to employees

from his intoxication while on duty, tributory negligence. We think it is injured while engaged in inter-State Congress not having legislated upon clear, also, that section 5 of said commerce on railroads is occupied

the subject, the state statute is opEmployers' Liability act touches up- exclusively by the Federal Employ-erative. The insurance fund created on and in a measure covers

ers' Liability act-and that, too, re- by the state statute is not for the where there is no negligence on the gardless of the negligence or lack of benefit of those who are within the part of either employee or employer, negligence of either party to the liti

Federal statute. Nor does the state for it is well known that contracts gation." Staley v. Illinois Cent. R. statute assume to release employers for insurance, relief benefit or in- Co., 268 nl. 356, 376, 109 NE 342, who contribute to the insurance fund demnity cover not only injuries LRA1916A 450.

from liability imposed by the Fedcaused by negligence, but all injuries 70. Smith V. Industrial Acc. eral statute. In all such cases the caused in any way while engaged in Commn., 26 Cal. A. 560, 147 P 600;

state statute imposes no liability the employment of the railroad. If Staley v. Illinois Cent.' R. Co., 268

and does not relieve from liability the argument of counsel this

for such accidents. Ill. 356, 109 NE 342, LRA1916A 450

All accidents of question were to be sustained it and note.

that character are governed by the would usually be difficult, if not im- [a] Hardship of construction,- Federal Employers' Liability Act. practicable, to enforce liability for "Counsel for plaintiff in error argue

In regard to such accidents it is not injuries caused while both parties that many of the injuries on rail

within the jurisdiction of the state engaged in inter-State roads while engaged in inter-State

either to create a liability or to re

This fact lends

it. merce on railroads.

from occur without any negli

The contribution strong support, in our judgment, to gence the part of anyone, and

which the employer makes to the inthe argument that it was the inten- that therefore the conclusion here surance fund under the state stattion of Congress to assume control reached will leave many injured em

ute relieves him of liability to his ployees, -- or of the entire

if the injury field of liability of


cases employees in

which are not

within the Federal statute. But acrailroads for injuries to employees death, their relatives, - without any occurring in inter-State commerce. opportunity for compensation, and is

cidents, resulting from negligence to

those engaged in interstate The reasoning that has repeatedly contrary to the spirit of the times, controlled the action of the courts, which demands humane legislation

merce, which are within the Federal that is, that the power of Congress covering this subject. That argu

statute, are now exclusively within to regulate inter-State commerce is ment may well be addressed to the

the sphere of Federal jurisdiction not limited by the fact that intraFederal Congress.

and as to them the state cannot cre

This court must State transactions may have become confine itself to the proper construc

ate or take away liability.” Winfield so interwoven that the effective gov- tion and operation of this act and

v. New York Cent., etc., R. Co., 216 ernment of the former incidentally cannot consider the evils which it is

N. Y. 284, 295, 110' NE 614, AnnCas controls

1916A 817 and note. the latter,

claimed will arise from the execu

(Simpson Shepard, 230 U. S. 352, 33 SCt 729, 57 tion of the Federal Employers' Lia

[c] Negligence must affirmatively

appear.-"An examination of section L. ed. 1511, 48 LRANS 1151, and bility act, however real those evils

1 of the federal statute shows that cases cited) would also apply on may be.” Staley v. Illinois Cent. R. this question. The questions of comCo., 268 Ill. 356, 381, 109 NE 342, by that act is limited to cases where

the liability of the carrier imposed parative negligence of employee and

LRA1916A 450. employer, assumed risk, contributory

71. Winfield v. Erie R. Co., 88 N.

the death of the employe results in

whole or in part from the negligence negligence, liability under indemnity J. L. 619, 96 A 391; West Jersey or

of an officer, agent or employe of insurance contracts under the Trust Co. v. Philadelphia, etc., R.

such carrier, or occurs by reason wording of the act are so involved Co., 88 N. J. L. 102, 95 A 753; Ham

of some defect or insufficiency due with that of negligence that it would mill v. Pennsylvania R. Co., 87 N. J. seem

to its negligence in its cars, engines, impossible to separate the L, 388, 94 A 313; Rounsaville v. Cencases under the Federal Employers' tral R. Co., 87 N. J. L. 371, 94 A 392;

appliances, machinery, track, roadLiability act solely on the line of the Winfield v. New York Cent., etc., R.

bed, works, boats, wharves, or other

equipment. When death results to negligence of the employer." Staley Co., 216 N. Y. 284, 110 NE 614, Ann v. Illinois Cent. R. Co., supra. Cas1916 A 817 [aff 168 App. Div. 351,

an employe without such negligence [a] Limitation of federal act by 153 NYS 499); Moore v. Lehigh Val

being present as a producing cause,

either wholly or partly, the statute title.-"Counsel for plaintiff in error ley R. Co., 169 App. Div. 177, 154 NY

imposes no liability upon the carargue that the title of the Federal S 620. See Grand Trunk R. Co. v.

rier. It must follow, therefore, we Employers' Liability act, especially Knapp, 233 Fed. 950 (where the

think, that in order to oust the Court the phrase 'certain cases,' shows question was discussed but a decision

of Common Pleas of jurisdiction in a that Congress did not intend to cover

held unnecessary

under the proceeding brought under our Workall cases of injuries occurring on facts).

men's Compensation act, it must afrailroads while engaged in inter- [a] Illustration. The federal act firmatively appear either in the State commerce. With this we do

does not prevent recovery of com- pleadings or the proofs that a right not agree. We think the phrase 'in pensation, under the state law, by a of action is given to the widow or certain cases' was inserted in this railroad employee accidentally in- personal representatives of the detitle to obviate some of the defects jured by being struck in the eye by ceased employe by the federal statsuggested in the title of the act held a stone while he was tamping ties ute; in other words, that his death unconstitutional in Howard V. Illi- in the employment of a railroad com- resulted in whole or in part from nois Cent. R. Co., 207 U. S. 463, 28 pany then engaged in interstate com- negligence chargeable to the defendSCt 141, 52 L. ed. 297, and that the merce. Winfield v. New York Cent., ant company: for such negligence 'certain cases' was meant to limit it etc., R. Co., 216 N. Y. 284, 110 NE will not be presumed." Winfield v. to those cases where the liability 614, AnnCas1916A 817.

Erie R. Co., 88 N. J. L. 619, 621, 96 arose in inter-State commerce. The [b] State and federal acts distin- A 394. wording of the statute and the rea- guished.-(1)“The federal and state [d] Double

recovery.--"If the soning in these decisions lead inevi- act

not in pari materia. The claim of the employer that the intably to the conclusion that the par- one is an act creating a liability to 'jury was the result of his negli










been extended to the employees of carriers by state and foreign commerce for death or injury, in water,72 it has been held in all of the cases in which case the laws of the United States provide for the question has arisen that in the case of such compensation or for liability for such death or inemployees the state compensation acts are appli- jury;77 or to employees of carriers which shall be cable.* The provision of the Federal Employers' construed to be excluded from the act by the laws Liability Act" allowing the carrier to set off any of the United States relating to liability to their sum contributed to any insurance, relief, benefit, or employees for personal injuries while engaged in indemnity that has been paid to the injured em- interstate commerce, where such laws are held to ployee, or to the person entitled thereto, on account be exclusive of all state regulations providing comof the injury does not include the compensation to pensation for accidental injuries or death suffered be paid under a workmen's compensation act." in the course of employment.78

Exceptions in statutes. Some of the statutes, in When employee engaged in interstate commerce. order to avoid conflict with federal laws, expressly In determining whether an employee was engaged provide that they shall not apply to cases where a in interstate commerce at the time of his injury, rule of liability or method of compensation has been the same tests are applied in cases arising under

76 or may be established by congress; or to the lia- the compensation acts as in other cases. When bility of employers to employees engaged in inter- a carrier is both an interstate and intra-state cargence should be upheld, and the tion by steamships, which, as far as may be established by the concase should be within the Federal appears, may not even indirectly be gress of the United States' is meanstatute, the employer would not be related to transportation by railroad, ingless. The legislature evidently insubjected to a double recovery, be- certainly not by any particular line tended to regulate, as far as it had cause in this event there could be no of railroad. It is significant that the power, all employments within recovery under the state statute, If the earlier Federal statute of June the state of the kinds enumerated." the injury was not the result of neg- 11, 1906, (34 Stat. L. 232), applied to Jensen v. Southern Pac, Co., 215 N. ligence an award under the state 'every common carrier' engaged in Y. 514, 521, 109 NE 600, LRA1916A statute could be made, but in such interstate

foreign commerce, 403, AnnCas1916B 276. cases there could be no recovery une whilst the present act applies only 77. Kennerson Thames Towder the Federal Employers' Liability to carriers by railroad. There is. boat Co., 89 Conn. 367, 374, 94 A 372, Act and hence the employer could nothing in the act indicative of a LRA1916A 436 (where the court not be subjected to a double recov- purpose to apply it to carriage by said: “Presumably $ 40 and similar ery."

Winfield v. New York Cent., water, if it happen to be conducted provisions in other Compensation etc., R. Co., 216 N. Y. 284, 296, 110 by a railroad corporation, and not Acts have reference to the Federal NE 614, AnnCas1916 A 817.

otherwise-to apply one rule of lia- Employers' Liability Act. Where the 72. Kennerson v. Thames Towboat bility to transportation by a steam- injury arises from a cause not covCo., 89 Conn. 367, 94 A 372, LRA ship line, if owned and operated by ered by the Federal Act, this section 1916 A 436; Lindstrom v. Mutual SS. a railroad corporation, and a differ- | does not apply. To come within the Co., 132 Minn. 328, 156 NW 669, LRA ent rule to precisely similar trans- Federal Act there must be interstate 1916D 935.

portation not thus controlled." Jen- | traffic, interstate employment, and 73. Kennerson y. Thames Towboat V. Southern Pac. Co., 215 N. Y. negligence"). Co., 89 Conn. 367, 94 A 372, LRA 514, 518, 522, 109 NE 600, LRA1916A 78, Staley v. Illinois Cent. R. Co., 1916A 436; Lindstrom v. Mutual SS. 403, AnnCas1916B 276. (3) The Fed- 268 Ill. 356, 109 NE 342, LRA1916A Co., 132 Minn. 328, 156 NW 669, LRA


Employers' Liability Act 450. 1916D 935; Hammill v. Pennsylvania April 22, 1908 (35 U. S. St. at L. 65), 79. Smith V. Industrial Асс. . R. Co., 87 N. J. L. 388, 94 A 313; refers only to interstate carriers by Commn., 26 Cal. A. 560, 147 P 600; Jensen v. Southern Pac. Co., 215 N. railroad and does not apply to a rail- Staley v. Illinois Cent. R. Co., 268 111. Y. 514, 109 NE 600, LRA1916A 403, road company whose sole relation to 356, 109 NE 3 12, LRA1916A 450; AnnCas1916B 276.

the employee is as lessee of a canal Moore v. Lehigh Valley R. Co., 169 [a] Illustrations.-(1) Where de- on which said employee works for App. Div. 177, 154 NYS 620; Fairchild fendant was a Minnesota corporation wages paid by the railroad company. V. Pennsylvania R. Co., 155 NYS 751, operating a steamship on the Great Hammill v. Pennsylvania R. Co., 87 752; Sullivan v. Chicago, etc., R. Co., Lakes between Duluth,

home N. J. L. 388, 94 A 313.

163 Wis, 583, 158 NW 321. port, and ports outside of Minnesota,


Act April 22, 1908 (35 U. S. "The actual work being performed and the employer was a fuel company St, at L. 66 c 149 $ 5).

at the time of the injury determines owning a dock at Duluth, and plain- 75. Staley y. Illinois Cent. R. Co., its character, and is the real test tiff employee while engaged in un- 268 Ill. 356, 382, 109 NE 312, LRA whether it is interstate or intrastate loading a cargo of coal from the 1916A 450.

work.” Fairchild v. Pennsylvania R. steamship on to the fuel company's "Having in mind the history of Co., supra. dock and working in the hold of the the legislation, both Federal and [a] Illustrations.-(1) A machinvessel was injured through the neg- State, on the questions here under ist in railroad switch or terminal ligence of defendant, it was held consideration, we can reach no other | yards, who was sent by his superior that a demurrer to his common-law conclusion, under the wording of officer to repair the whistle rod on an action for damages was properly said section 5, than that the Illinois engine engaged in switching and sustained. Lindstrom v. Mutual SS. Workmen's Compensation act was handling interstate commerce, and Co., 132 Minn, 328, 156 NW 669, LRA not intended to be included by Con- who, while on his way, stepped in 1916D 935. (2) In New York the gress within any of the exceptions front of another engine engaged in facts and reasons


stated in said section. What has al- switching all classes of freight, interfollows: "The claimant's husband ready been said heretofore in this state as well as intra-state, was “enwas killed August 15th, 1914, opinion with reference to the intent gaged in inter-State commerce" while employed in unloading the of the Illinois legislature in passing the time of the accident, within the steamship EI Oriente which was the Workmen's Compensation act Federal Employers' Liability Act of berthed alongside a pier in the Hud- | practically demonstrates that that April 22, 1908 (35 U. S. St. at L. 65). son river. When the accident body did

not intend the remedy Staley v. Illinois Cent. R. Co., 268 curred he was moving an electric thereunder to be in any sense cumu- Ill. 356, 109 NE 342, LRA1916A 450. truck upon a gangway connecting the lative to the_remedy provided for in (2) A railroad special Watchman vessel with the pier. The appellant, the Federal Employers' Liability act, who removed trespassers from a corporation of the state of Ken- Congress could include workmen's interstate train and was injured just tucky, is a common carrier by rail- compensation acts within the excep-after he alighted from the train to road. It also owned and operated tion provided for in said section 5 drive the trespassers out of the railsaid steamship, which plied between but has not yet seen fit so to do." road yard was still employed in inNew York and Galveston, Texas. It Staley v. Illinois Cent. R. Co.. supra. terstate commerce at the time he redoes not appear that the steamship 76. See statutory provisions; and ceived his injury. Smith v. Induswas in any way operated in connec- Winfield v. New York Cent., etc., R. trial Acc. Commn., 26 Cal. A. 560. 147 tion with a line of railroad, and in Co., 216 N. Y. 284, 110 NE 614, Ann P 600. (3) "The work being perits report of the accident the appel- | Cas1916A 817.

formed by the deceased when he was lant stated its business to be trans- [a] Construction of provision.-- injured was not interstate, for he was portation

steamships engaged “Literally construed, section

uncoupling empty cars

local solely in interstate commerce.'

makes the statute apply only to in- railroad, operating always exclusiveIt is said that the appellant is a car- trastate work, either done by itself ly within this state-a railroad havrier by railroad, and that, therefore, in connection with, but clearly | ing no interstate characteristic whatthe Federal Employers' Liability Act separable and distinguishable from, ever, except when actually engaged of April 22, 1908 (35 Stat. L. 65), interstate or foreign commerce. But, in carrying interstate passengers, prescribes the rule governing the though

section is awkwardly baggage,

freight." Fairchild v. employment in which the deceased phrased, it is manifest that a broader Pennsylvania R. Co., 155 NYS 751, was engaged. As far as this case is application

intended, else the 752. (4) In view of workmen's comconcerned the appellant is a carrier clause for whom a rule of liability | pensation law (Consol. L. C 67) $ 21. by water. Its business is transporta- or method of compensation has been providing that, in any proceeding for








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rier, a state compensation act applies unless both proceeding in a state court the compensation act carrier and servant, at the time of the injury, are will be applied. There is, however, authority to

80 engaged in interstate commerce.

the effect that, by the statute limiting the liability [032] 2. Matters within Admiralty Jurisdic- of the owner of the vessel for damages or for intion. While the judicial power of the United States jury,87 the field has been occupied to the exclusion extends to all cases of admiralty and maritime of the power of the states. 88 And further, that a jurisdiction,81 it is not exclusive of the jurisdiction statute which provides that the method of compenof the state courts over remedies based on the sation therein established shall be to the exclusion common law, or on statutory developments thereof 382 of every other remedy, and that all civil actions but since the maritime law is a part of the law of and civil causes of action for personal injuries and the United States, the legislature of a state has no all jurisdiction of the courts of the state are abolpower to modify or to abrogate it;83 hence a state ished, cannot be extended to employers subject to compensation act cannot deprive an employee of actions in admiralty. any remedy which he may have in admiralty under [$ 33] E. Conflict of Laws as to Time. A comthe maritime law.84 But by the weight of author- pensation act has no applicability in the case of ity the remedies in admiralty and under a com- injuries sustained prior to its enactment, or prior pensation act may exist concurrently,8% and in a to the time at which it is to take effect." The law compensation, it shall be presumed! 85. Berton Tietjen, etc., Dry time contract, who was injured in in the absence of substantial evi- | Dock Co., 219 Fed. 763 (New Jersey the course of his employment). dence to the contrary, that the act); Kennerson v. Thames Towboat “Where liability is asserted in the claim comes within the provisions Co., 89 Conn. 367, 94 A 372, LRA1916 A courts of this state against the owner of the law, an award to a claimant 436; Lindstrom v. Mutual Ss. Co., 132 of a vessel of this state to redress a who was employed in the state in Minn. 328, 156 NW 669, LRA1916D maritime tort, the question of the car shops of railroad, en- 935; Walker v. Clyde SS. CO., 315 whether liability exists is to be degaged in intra-state and interstate N. Y. 529, 109 NE 604, AnnCas1916B termined by the common law of this commerce, in the repair of a 87 and note.

state, as the same has been modified which has been used both in inter

(a) Not a proceeding in rem(1) by the valid general statutes of the state and intra-state commerce, was “The contract [of employment) in state, and, since the compensation act within the law, since the car was in question may be assumed to be a is now the law of this state, substino sense a part of interstate com- maritime one. That would give the tuted for all common-law remedies merce. Okrzsezs v. Lehigh Valley R. admiralty court the right to take ju- before existing, that statute furCo., 155 NYS 919. (5) One who per- risdiction over it. It could not take nishes the rule upon which the liaforms work in putting prospective from our courts jurisdiction over a bility and the extent of it are to be subjects of interstate commerce in a contract made in Connecticut by citi. determined." Lindstrom v. Mutual state of preparedness for transporta- zens of Connecticut, nor prevent its ss. Co., 132 Minn. 328, 335, 156 NW tion is not engaged in interstate enforcement wherever it is operative 669. LRA1916D 935. commerce. Sullivan v. Chicago, etc., by the procedure of the statute 87 U. S. Rev. St. $ 4283. R. Co., 163 Wis. 583, 138 NW 321.

[state) of its origin. This contract 88. State v. Daggett, 87 Wash. When employee engaged in inter- is to be interpreted and enforced by 253, 151 P 648, LRA1916A 446. Comstate commerce see Commerce.

the application of the same principles pare Berton Tietjen, etc., Dry 80. Watts v. Ohio Valley Electric accorded any contract. A contract Dock Co., 219 Fed. 763 (where the R. Co., (W. Va.) 88 SE 659. for work to be done, or services to be court held

that the provisions of [a] "An interstate carrier may, performed, or goods to be delivered, Rev. st..$$ 4283-4285, as to limitathrough the same employé or em- in a jurisdiction other than the place tion of liability, did not apply to a ployés, engage at a given time in in- of contract is as enforceable in the dry dock used for the repair of vestrastate commerce, and at another in State where the contract was made sels, although capable of being interstate commerce, Illinois Cent.

as in that where it was to be per- foated and towed from place to R. Co. v. Behrens, 233 U. S. 473, 34 formed, unless the contract be place). Sct. 646, 58 L. ed. 1051, AnnCas1914C against the law or the public policy

“The Congress of the United States 163." Connole v. Norfolk, etc., R. of that jurisdiction, or its legal ma- having passed a law which limits or Co., 216 Fed. 823, 824.

chinery is inappropriate or inade- measures the extent of the liability [b] Ohio workmen's Compensation quate to its enforcement. Plainly of the owner of a vessel to a workAct (act March 14, 1913, 103 L. p this proceeding is a personal action,

who has sustained an injury, 90) 8 51 provides that the act shall

and not one in rem. The admiralty the legislature would not have the apply to employers and their employ- court has not exclusive jurisdiction. power to fix another and different ees engaged in intra-state and also

measure, Knapp v. McCaffrey. 177 U. S. 638, 20 standard or in interstate and foreign commerce,

State v. Dagfor

gett, 87 Wash. 253, 259, 151 P 648, whom

SCt 824, 44 L. ed. 921; Manchester v. rule

of liability method of compensation has been or

Massachusetts, 139 V. S. 240, 11 sct LRA1916 A 446.
559, 35

L. ed. 159; Schoonmaker v.



Daggett, may be established by the congress

Wash, of the United States only to the exGilmore, 102 U. 3. '118, 26 L. ed. 95; 253, 151 P 648, LRA1916A 446 (hold

compensatent that

Leon v. Galceran, 11 'Wall. (U. S.; | ing that the workmen's their mutual connection

tion act does not extend to a with the intra-state work may and

185, 20 L. ed. 74; Belfast v. Boon, 7 shall be clearly separable and distinWall. (U. S.) 624, 19 L. ed. 266; Hine

man employed on a boat operating on

Puget Sound in v. Trevor, 4 Wall. (U. S.) 555, 18 L.

intra-state comguishable from the interstate and

to foreign commerce, and

ed. 451." Kennerson v. Thames Tow: merce, and denying mandamus

then only boat Co.. 89 Conn. 367, 372.9 94 A372: compel the industrial insurance como when such employer and any of his LRA1916 A 436. (2) “ The remedy pro

mission to make a demand on the workmen, working only within the vided by the workmen's Compensa- their pay rolls).

vessel owners for a percentage of state with the approval of the state tion Act is a substitute for the com

But see The Fred liability board of awards, and far as not forbidden by any act of proceeding in rem to enforce a mari. mon-law remedy. It is in no sense a

E. Sander, 212 Fed. 545 (where it was

held that an employee, after making congress, voluntarily accept the pro

time lien and may, therefore, exist claim for and receiving compensation visions of the act. The effect of this provision is that the act does not ap-miralty. The state cannot interfere proceed for the same injury in ad

concurrently with the remedy in ad- under the Washington act, could not ply to employers and their employees engaged with

miralty). exclusively in interstate

the admiralty jurisdiction

9a. Arizona, etc., R. Co. v. Clark, commerce, but does apply to those (Workman v. New York, 179 U. S. engaged in both interstate and intra552, 21 SCt 212, 45 L. ed. 314; The

207 Fed. 817, 125 CCA 305 (aff 235 U. state commerce where their mutual Lottawanna, 21 Wall. (U. S.) 558, 22

S. 669, 35 SCt 210, 59 L. ed. 415, LRA L. ed. 654), and if the act be valid, Workmen's Compensation Act of June

1915C 834). (holding that Arizona connection with intra-state work is separable from interstate and foran injured employee may in certain

8, 1912 (Sp. Sess. L. (1912) c 14), was eign commerce, when, and only when,

cases have a choice of remedies, one | inapplicable to an action for injuries they elect to be governed by the act. under the act and another in ad

to a servant, where the injuries OCConnole v. Norfolk, etc., R. Co., 216 miralty precisely as before he could

curred prior to the passage of the Fed. 823.

choose between


81. Const. art 3 $ 2.
remedy and the right to proceed in

91. Salem Hospital v Olcott. 67 82. State v. Daggett, 87 Wash. 253, admiralty." Walker v. Clyde SS.

Or. 448, 136 P 341 (holding that no 151 P 648, LRA1916A 446.

Co., 215 N. Y. 529, 531, 109 NE 604, workmen injured before June 30, Jurisdiction of admiralty generally AnnCas1916B 87.

1914, being entitled to benefits under see Admiralty 88 16-128.

86. Lindstrom v. Mutual SS. Co., the act of Febr. 25, 1913, c 112, the 83. Workman New York, 179 132 Minn. 328. 156 NW 669, LRA “ Workmen's Compensation Act," and U. S. 552. 21 SCt 212, 45 L. ed. 314; 1916D 935; Walker V. Clyde SS. Co., the commission being authorized, by State v. Daggett, 87 Wash. 253, 151 215 N. Y. 529. 109 NE 504, AnnCas$ 23, to provide hospital accommodaP 618, LRA1916A 446.

1916B 87. But compare Schuede y. tions only for injured workmen "who 84. The Fred E. Sander, 212 Fed. Zenith SS. Co., 216 Fed. 566 (holding are entitled to benefits hereunder." 513; The Fred E. Sander, 208 Fed. that the Ohio Employers' Liability the secretary of state properly re724; State v. Daggett, 87 Wash. 253, Act was not applicable to the case fused to audit the claim of a hospital 151 P 648, LRA1916A 446.

of a seaman employed under a mari-1 for the sum which the commission










in force at the time of the injury governs the em- death.93 As to, matters of procedure, the law in ployee's right to compensation. The rights of force at the time of seeking to enforce the right others, however, in the case of the employee's death, to compensation will control. are governed by the law in force at the time of his

V. GENERAL RULES OF CONSTRUCTION [$ 34] The courts have been practically unani- though in some decisions it has been held that, mous in according to the workmen's compensation being in derogation of the common law, they must acts a broad and liberal construction in order to be strictly construed.' Under the rule of liberal effectuate their evident intent and purpose,95 al- construction, however, the courts cannot go to the had contracted to pay it for hospital 94. Peo. v. McGoorty, 270 Ill. 610, remedied, the aspirations evidently accommodations during December, 110 NE 791 (holding that, notwith- intended to be embodied in the enact1913, for workmen entitled to bene- standing circuit courts have power ment, and

effects and consefits under such law, it being impos- at common law to issue certiorari to quences as regards responding to the sible that there could be such work- review decisions of the industrial prevailing conception of the necessimen).

board provided for in the workmen's ties of public welfare, should be con92, Schmidt v. 0. K. Baking Co., compensation act, yet a writ of cer- sidered and the enactment given such (Conn.) 96 A 963; Deibeikis v. Link- tiorari issued before the amendment broad and liberal meaning as can be Belt Co., 261 Ill. 454, 104 NE 211, of 1915 [L. (1915) p 400), embraced fairly, read therefrom so far as reAnnCas1915A 241; Baur Essex in $ 19f, went into effect, is, where quired to effectively eradicate the County Ct. C. Pl., 88 N. J. L. 128, 95 not already determine governed by mischiefs it was intended to obvi A 627.

that section, for there is no vested Milwaukee v. Miller, 154 Wis. 652, [a] Provisions as to notice.- "Pre- right in any particular remedy or 144 NW 188, LRA1916A 1. liminary to passing upon the ques- mode of administering it).

"The act should be liberally intertion thus presented as to the conse- 95. Conn.-Kennerson v. Thames preted, to the end that the purpose quences attached to the delay in the Towboat Co., 89 Conn. 367, 94 A 372, of the legislature in suppressing the giving of notice to the employer, it LRA1916 A 436; Powers v. Hotel Bond mischief and advancing the remedy becomes necessary to determine Co., 89 Conn. 143, 93 A 245.

be promoted even to the inclusion of whether the provisions of section 21, Mass.-Young v. Duncan, 218 Mass,

within the reason although c. 138, of the Public Acts of 1913, or 346, 106 NE 1; In re Sullivan, 218 outside the letter of the statute, and those of sections 3 and 13 of chapter Mass. 141, 105 NE 463, LRA1916A that every hazardous industry within 288 of the Public Acts of 1915, which 378; In re Donovan, 217 Mass. 70, 104 the purview of the act should bear did not go into effect until May 20, NE 431, AnnCas1915C 778; In the burden arising out of injuries to 1915, both dealing with that subject, Coakley, 216 Mass. 71, 102 NE 930, its employees regardless of the but in a somewhat different manner, AnnCas1915A 867.

cause of the injury." Zappala v. controlling In the claimant's N. Y.-In re Petrie, 215 N. Y. 335, | Industrial Ins.



Wash. behalf, it is contended that the pro- 109 NE 549; Moore v. Lehigh Valley 314, 316, 144 P 54, LRA1916A 295. visions of the earlier act, which the R. Co., 169 App. Div. 177, 154 NYS [a] Insurance acts.-(1) “An emcourt below interpreted and applied, | 620; Rheinwald v. Builders' Brick, ployer who is insured in the State relate to procedure and remedy, and etc., Co., 168 App. Div. 425, 153 NYS fund has been compelled to pay in therefore were superseded by those 598; Winfield v. New York Cent., etc., advance for the injuries arising in of the later act in force when the R. Co., 168 App. Div. 351, '153 NYS his employment, and upon that achearing before the commissioner was 499; McQueeney v. Sutphen, 167 App. count, by section 53, is granted imhad. On behalf of the respondent, it Div. 528, 153 NYS 554.

munity from all other liability on is insisted that they concern sub- R. I.- Donahue v. R. A. Sherman's account of accident to his employees, stantive rights. The latter conten- Sons Co., 98 A 109.

and the employees are deprived of tion is the correct one. The relation Wash.-Zappala v. Industrial Ins. all other remedies. If the act is to between the parties was contractual, Commn., 82 Wash. 314, 144 P 54, be construed technically it deprives their rights and obligations arose LRA1916A 295; Peet v. Mills, 76 the employee of its beneficial provifrom that relation, and the terms and Wash. 437, 136 P 685, LRA1916A 358, sions and the employer from the conditions of it were defined by the AnnCas1915D 154.

But compare protection which he has paid for and statute in force which formed a part Hillestad v. Industrial Ins. Commn., the State has undertaken to give." of

the contract of employment. 80 Wash. 426, 428, 141 P 913, AnnCas McQueeney v. Sutphen, 167 App. Div. Sibley V. State, 89 Conn. 682, 96 A 1916B 789 (where the court said: 528, 531, 153 NYS 554. (2) "The act 161; Powers v. Hotel Bond Co., 89 “The principles of the common law was passed to benefit workmen in Conn. 143, 93 A 245. By these terms can be of little assistance to us in hazardous employments who were and conditions as prescribed by the measuring the right of a workman without a legal remedy. Compensaact of 1913, the liability of an em- to claim compensation under the in- tion is given without regard to tho ployer, in case

of injury to the dustrial insurance law. It is the fault of the master at common law employé, was not fixed by the simple purpose of that law to compel the or under the employers' liability fact of injury to the employé arising industries of the state to bear the acts, The law has been and should out of and in the course of his em- burden of accidents occurring in be construed fairly, indeed liberally, ployment. The element of notice of their operation, and being in deroga- in favor of the employee. Against injury to the employer, if he be igno- tion of the common law, it cannot be its justice economic soundness rant of it, entered into the very construed so as to include those who nothing


said. (Jensen essence of the injured party's claim do not, by words or necessary impli- Southern Pac. Co., 215 N. Y. 514, 109 and the extent of it. The time when cation, come within its terms"). NE 600, LRA1916 A 403, AnnCas1916B the notice should be given was made Wis.-Kiel V. Industrial Commn., 276.) The power of the legislature a factor to be considered in deter- 163 Wis. 441, 158 NW 68; Lesh v. to enact such laws is expressly demining what the claim should be Nlinois Steel Co., 163 Wis. 124, 157 ired to be beyond the limitations which he was entitled to enforce in NW 539; Foth v. Macomber, etc., of the state Constitution. (Const. the manner prescribed by statute. Rope Co., 161 Wis. 549, 154 NW 369; N. Y. art. 1, § 19.) It would not be The act of 1913 was in force when Sadowski v. Thomas Furnace Co., 157 difficult, by an adherence to the conthis elaimant's injuries

Wis. 443, 146 NW 770; Tallmen v. cepts of liability for negligence, ceived, when the 30 days provided Chippewa Sugar Co., 155 Wis. 36, 143 based on the failure to foresee and by it for notice thereof to be given NW 1054; Milwaukee v. Miller. 154 prevent accident (Ives v. South Bufto his employer had run-when no- Wis. 652, 144 NW 188, LRA1916 A 1. falo R. Co., 201 N. Y. 271, 94 NE 431, tice was in fact given to his em- "The act is to be interpreted in the 34 LRANS 162, AnnCas1912B 156), ployer and when the attempt to light of its purpose and, so far as rather than to the principles of inenforce his claim was begun. What-reasonably may be, to promote the dustrial insurance for injuries sufever right of compensation he might accomplishment of its beneficent de. fered by workmen in the course of have had thus became fixed, and the sign." Young v. Duncan, 218 Mass. their employment without regard to extent of it determined, or, rather, 346, 349, 106 NE 1.


cause of such injury the elements to be considered in its “The statute was the expression of (Workmen's Compensation Law, $ 10; determination, fixed. Whatever in- what was regarded by the legislature Post V. Burger, 216 N. Y. 544, 111 choate right, arising from his inju- as a wise public policy concerning NE 351, AnnCas1916B 158), to defeat ries, he may have lost by noncom- injured employees. Under such cir- the purpose of the constitutional and pliance with the conditions precedent cumstances we think that it is to be legislative provisions." Heitz to a definite and enforceable claim interpreted with fair liberality, to Ruppert, 218' N. Y. 148, 154, 112 NE then lost, Whatever that loss the end

of securing the benefits 750. was, it could not be restored to him which it

was intended to accom

96. Andrejwski v. Wolverine Coal by subsequent legislation. Any at

plish." In

re Petrie, 215 N, Y. 335, Co., 182 Mich. 298, 303, 148 NW 684. tempt to do 'so would be to deprive 338, 109 NE 549.

**This statute, being in derogation his employer of a right vested in it "In construing a statute which is of the common law, should be strictly under its contract." Schmidt v. 0. referable to the police power and was construed, and that fundamental K. Baking Co., (Conn.) 96 A 963, 964. originated to promote the common principle must be applied, although

93. State v. Ramsey County Dist. welfare, supposed be seriously it is remedial and provides a remedy Ct., 132 Minn. 249. 156 NW 120: State | jeopardized by the infirmities of an against а person

who otherwise v. 'Hennepin County Dist. Ct., 131 existing system-the conditions giv- would not be liable." Andrejwski v. Minn, 96, 154 NW 661.

ing rise to the law, the faults to be Wolverine Coal Co., supra.

or can





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