trial court's construction of this act, my brethren are all agreed that he reached the correct result; that the statute in question was designed to prevent a plaintiff from discontinuing his suit or submitting to a nonsuit without the consent of the defendant, where the defendant, who had been to the expense and trouble of procuring witnesses, had entered upon his defense in open court by putting in his testimony upon the merits, and that the act was not intended to apply to those cases where no witnesses were procured, no defense made on the facts, and only legal questions are raised. At common law the plaintiff might submit to a nonsuit at any time before verdict. Deneen v. Railway Co., 150 Mich. 235; Davis v. Railway, 162 Mich. 240. This practice has been sanctioned by long usage and is a protection against defeat through surprise and disappointment in proofs. This court entertains the view that it was not the legislative intent to modify this practice so long in vogue except as herein pointed out. It follows that the judgment of nonsuit is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.

CAREY v. GRAND TRUNK WESTERN RAILWAY CO.

1. INTERSTATE COMMERCE · MASTER AND SERVANT - -FEDERAL EMPLOYERS' LIABILITY ACT-RAILROADS-JURISDICTION.

-AC

The decision of the Supreme Court of the United States that the entire subject of the liability of interstate railway carriers for the death or injury of their employees while employed in interstate commerce is completely covered by the Federal employers' liability act (35 U. S. Stat. 65) is controlling in Michigan, rendering inapplicable the provisions of the Michigan workmen's compensation act in such cases. New York Cent. R. Co. v. Winfield, 244 U. S. 147. 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW CEPTANCE OF ACT-INTRASTATE COMMERCE. Where claimant's husband, a conductor, was accidentally killed while in charge of a freight train composed exclusively of cars containing interstate shipments, an award of compensation under the Michigan workmen's compensation law was unauthorized, the Federal employers' liability act (35 U. S. Stat. 65) having exclusive jurisdiction, notwithstanding defendant railroad company had filed its acceptance of the Michigan act, since it would apply to cases arising in intrastate commerce only; defendant being engaged in both interstate and intrastate commerce. Certiorari to Industrial Accident Board. Submitted October 16, 1917. (Docket No. 154.) Decided February 19, 1918.

Anna Carey presented her claim for compensation against the Grand Trunk Western Railway Company for the accidental death of her husband in defendant's employ. From an order awarding compensation, defendant brings certiorari. Reversed.

W. A. Geer and R. R. Weaver (H. Geer and W. K. Williams, of counsel), for appellant.

John B. McIlwain, for appellee.

STONE, J. This case is before this court upon certiorari to the industrial accident board. The record contains the proceedings had before the committee on

arbitration, and an appeal from its decision to the industrial accident board.

The defendant and appellant is a common carrier railroad corporation, engaged in the business of intrastate and interstate commerce in this State and elsewhere. On July 11, 1916, Timothy J. Carey, while in the service of said railway company as conductor of a freight train, composed exclusively of cars containing interstate shipments, consisting of freight from Chicago and elsewhere outside of this State, to points within and beyond this State, and consignments received at various points in Michigan, and destined for points beyond its boundaries, sustained an injury by tripping and falling over a semaphore wire, strung along the railroad track at the Lansing, Mich., station, from which injuries it was claimed that consequences developed causing his death on November 9th following.

The appellant in September, 1912, had filed with the industrial accident board of Michigan a written statement to the effect that it elected to accept the provisions of the Michigan compensation act, which was approved by the board, and the company was permitted to carry its own risk. After the death of Mr. Carey, his widow, Anna Carey, presented a claim against the railway company, seeking an adjustment of the matter according to the terms of the Michigan workmen's compensation act. The appellant declined in writing to settle the claim as presented, upon the ground that Mr. Carey, at the time of the accident, was engaged in interstate commerce. The plaintiff thereupon filed an application for adjustment of claim, and a hearing was had before an arbitration committee under the said act. The evidence introduced by both parties disclosed that Mr. Carey, and the railway train upon which he was employed as conductor at the time of the accident, were engaged in interstate

commerce.

The committee awarded compensation, and an appeal was taken to the board, which found that Mr. Carey was engaged in interstate commerce at the time of the accident, and further that the award of the committee on arbitration should be affirmed, and entered an order accordingly.

In this court appellant relied upon the proposition that the accident upon which plaintiff's claim is based did not occur within the jurisdiction covered by the Michigan compensation act, and the question is raised by proper assignments of error. It is urged by appellant that the Michigan workmen's compensation act, by its own terms, expressly excludes cases of this nature from adjudication by the industrial accident board. Section 4, pt. 6, of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5491), reads as follows:

"The provisions of this act shall apply to employers and workmen engaged in intrastate commerce, and also to those engaged in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his workmen working only in this State, may, subject to the approval of the industrial accident board, and so far as not forbidden by any act of congress, voluntarily accept and become bound by the provisions of this act in like manner and with the same force and effect in all respects as is hereinbefore provided for other employers and their workmen."

It is also urged by appellant that this record fails to disclose the existence of a contractual obligation purporting to require adjustment of the present claim upon the basis of the Michigan act, but that, did one exist, it would be quite unenforceable, as opposed to all the principles announced by the Federal decisions,

and the following cases are cited: Grand Trunk R. Co. v. Knapp, 233 Fed. 950; Waters v. Guile, 234 Fed. 532; New York Cent. R. Co. v. Winfield, 244 U. S. 147 (Am. & Eng. Ann. Cas. 1917D, 1139); Erie R. Co. v. Winfield, 244 U. S. 170. In the Knapp Case Judge Knappen, referring to the section of the Michigan statute above quoted, said:

"By section 4, part 6, of the act, its provisions are made to apply to employers and workmen engaged in intrastate commerce, but not to those engaged in interstate commerce, 'for whom a rule of liability or method of compensation has been or may be established by the congress of the United States,' except to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce.' There is also provision for express and voluntary acceptance of the act by 'any such employer and any of his workmen working only in this State,' if done with the approval of the industrial accident board."

The position of the plaintiff is stated in the supplemental brief of her counsel as follows:

"At the time the workmen's compensation act was passed the Federal employers' liability act had been in force four years, by which the employer was liable to the employee in an action at law for all injuries received in the line of employment as the result of negligence chargeable to the employer, and in which the common-law defenses of fellow servant, contributory negligence and assumption of risk were taken away. Under this act, however, negligence was essential to recover, and in all cases where negligence could not be shown the employee was without remedy. This was not deemed a sufficient measure of justice to employees. The unquestioned intent and purpose of the legislature in enacting the workmen's compensation law was to provide a remedy for all injured employees, which legislation was prompted by a universal public demand that such a measure of compensation should be provided, and the cost of it should be borne by the employer the same as any other expense incurred in carrying on his business. Congress had taken a step