had a right to recover an amount more or less speculative upon proving facts of negligence that often were difficult to prove, and substitute a systém under which in all ordinary cases of accidental injury he is sure of a definite and easily ascertained compensation, not being obliged to assume the entire loss in any case, but in all cases assuming any loss beyond the prescribed scale."

As it relates to the freedom of agreement respecting employment, the court is of the view that the act is fairly supportable on the ground that it is a reasonable exercise of the police power of the state. The court further says concerning the act, answering the objection advanced that it is inimical to the equal protection clause of the Fourteenth Amendment:

"The only apparent basis for it is in exclusion of farm laborers and domestic servants from the scheme. But, manifestly, this cannot be judicially declared to be an arbitrary classification, since it reasonably may be considered that the risks inherent in these occupations are exceptionally patent, simple, and familiar." Now, all this discussion has proceeded independently of the industrial insurance feature of the act, and is as applicable and cogent here as to the New York act. The insurance feature, among other things, is designed to afford the employee adequate security for his compensation. In the present act, another scheme is evolved, intended to accomplish the same purpose. The particular method for accomplishing the, purpose is mainly one of legislative choice, and so long as such method is reasonably adapted to the purpose, and is not arbitrary and without proper regard to cause and effect, it is beyond the scope of judicial function to disturb the choice. We think that the present legislation is reasonably adapted to secure to the employee the compensation provided for in the act. At least, it is such that the court will not say that the legislation is arbitrary and not based upon sufficient reason for its adoption.

In Hawkins v. Bleakly, 243 U. S. 211, 37 Sup. Ct. 255, 61 L. Ed. 678, Ann. Cas. 1917D, 637, another case decided at the same time, involving the Iowa act (Acts 35th Gen. Assem. c. 147) relating to employers' liability and workmen's compensation, the same general reasoning is adopted for upholding the statute, and this again quite aside from the insurance provision. The Iowa act, in its general features, is practically the same as the New York act, and it was held that it is not inimical, to that cause of the Fourteenth Amendment guaranteeing the equal protection of the laws. See, also, Mountain Timber Co., v. Washington, 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D, 642, and Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554.

This disposes of the third objection favorably to the validity of the act in question.

[3-5] The law is assailed by the first objection on the ground

that it is thought to be class legislation, and this because, out of all the industries, the Legislature has selected but one class, namely, mining concerns employing five or more persons in the work. This pertains, again, to the equal protection of the laws clause of the Fourteenth Amendment. Classification of subjects for regulation by law is a function belonging to the legislative department of goverment. Generally speaking, class legislation is prohibited, but legislation which is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the prohibition. Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. Ed. 923.

The Legislature possesses a wide scope of discretion in the exercise of its function of classification, and such legislation can be condemned as vicious only when it is without any reasonable basis, and therefore purely arbitrary; and when legislative classification is called in question, if any state of facts can be reasonably conceived that would sustain the law, the existence of that state of facts at the time it was enacted must be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct.. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160. To the same purpose, with elaborate discussion of the subject, see Miller v. Wilson, 236 U. S. 373, 382, 35 Sup. Ct. 342, 59 L. Ed. 628, L. R. A. 1915F, 829; Louisville & Nashville R. R. v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84; Mondou v. New York, New Haven & Hartford R. R. Co., 223 U. S., 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Cunningham v. Northwestern Improvement Co., supra. - The application of the rule here is simple. Mining is the one great industry of Alaska. It is attended by many hazards and complexities, and it is not strange that the Legislature should make of the single industry a classification for adjustment of workmen's compensation. The act is criticized because "mining operations" are to be held to include all work performed on or for the benefit of any mine or mining claim; it being urged that many persons but remotely connected with the working of mines are thereby included. This again is matter for legislative discretion, and the question whether the workmen are engaged in mining operations is one that can be best disposed of when we come to it.

[6] The second objection pertains to the elective aspect of the law. It is insisted that the law makes it more difficult for the workmen to make their election to accept the provisions, and to waive them when the election is once made, than for the employer, and that it is burdensome for the workmen to pay the expenses pertaining to verification and recording. This constitutes only a minor inequality, if inequality it can be called, and is without the indicia of arbitrary discrimination.

[7] Lastly, it is insisted that the act makes no provision respecting workmen under the age of majority for accepting or

rejecting the provisions of the act. The Legislature assumed, perhaps, that a minor, having the capacity to contract or to be contracted with, has the capacity to reject or waive such provisions. But, however that may be, minors are not denied the interposition of a guardian or next friend in doing the act for them.

Affirmed.

UNITED STATES DISTRICT COURT.

W. D. SOUTH CAROLINA,

O'DELL
ບ.

SOUTHERN RY. CO.*

1. COMMERCE "INTERSTATE COMMERCE" - RAILROAD EMPLOYEE.

Whether a railroad employee was, within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916. §§ 8657-8665]), engaged in "interstate commerce" at the time he was injured, depends upon the character of the act at that time, and the fact that the appliance he was repairing when injured might in the future be used in interstate commerce does not establish that the cause of action falls within the act.

(For other cases, see Commerce, Dec. Dig. § 27[8].)

(For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.)

At Law. Action by Clarence O'Dell against the Southern Railway Company. There was a verdict for plaintiff, and defendant moves for new trial. Motion denied.

J. J. McSwain, of Greenville, S. C., for plaintiff.

Cothran, Dean & Cothran, of Greenville, S. C., for defendant.

JOHNSON, D. J. The complaint alleged that the plaintiff was engaged in interstate commerce work at the time of his injury. There was no testimony to show that he was so engaged. The testimony showed that he was injured while working on an electric motor in the yards at Asheville, N. C. The plaintiff moved to strike out the allegation that he was engaged in interstate commerce, so as to have the complaint conform to the facts proved. The court allowed the amendment. The defendant demanded. time to answer. That demand was refused. The cause was argued by counsel; and, after instructions by the court, submitted to the jury. The verdict was for the plaintiff. Defendant moved for a new trial.

* Decision rendered, November 25, 1917. 248 Fed. Rep. 343.

The motion for a new trial is based upon all the grounds upon which the defendant asked for a directed verdict, and upon two additional grounds: First, that the court erred in allowing the plaintiff to amend his complaint and in denying the defendant time to answer; second, that the verdict is excessive. Only the last two grounds need be considered here, as all the others were overruled when the court refused to direct a verdict.

[1, 2] Did the court err in allowing plaintiff to amend his complaint after the evidence was all in? The allowance of amendments to pleadings and the conduct of the trial must rest in the discretion of the court; but such discretion should be so exercised as not to deny any litigant a substantial right. The plaintiff, by the language of the complaint, indicated that his recovery would be on account of the defendant's breach of its duty to him as its servant while engaged in interstate commerce. The defendant denied that the plaintiff was engaged in interstate commerce. There is no dispute about when the plaintiff was injured, or where he was injured, or what he was doing at the time of his injury. The relation of master and servant existed between the plaintiff and the defendant. The plaintiff was working in Asheville, N. C., and at the time of the injury was engaged in repairing a motor which when in use. operated a bucket. The bucket lifted cinders from a pit into which they had been dumped by the defendant's engines.

The plaintiff was engaged in interstate or intrastate commerce. The defendant, in full possession of all information touching the time and place of the injury, and what the plaintiff was doing when he was injured, denied that he was engaged in interstate commerce. If he was engaged in interstate commerce, the Employers' Liability Act is applicable. If he was engaged in intrastate commerce, the laws of North Carolina, where the injury occurred, would apply. When the facts are all out, it is the duty of the court to apply the law applicable to the facts. If it is necessary to amend the pleadings to conform to the facts proved, such amendments should be allowed. That is what was done in this case. It would be trifling with justice to dismiss the complaint because the evidence showed that the plaintiff was engaged in intrastate commerce and that the laws of North Carolina and not the Employers' Liability Act applied. To do so would be but to compel the plaintiff to bring another suit, and go to the trouble and expense of proving the same facts, in order to apply the very law which the court has applied.

It is argued that the defendant is not required to admit plaintiff's allegation, or any of them. That is true. But can the defendant say that the court abused its discretion when it refused to allow the defendant time to plead as a defense the very thing that it had denied upon the record, when an opportunity was given to it to admit it, or to suspend the trial of the cause after it was ready to go to the jury, and try it again, in order to allow

the defendant to prove a thing that, when it had an opportunity to prove, it had remained silent? It was not claimed, at the time the defendant demanded time to answer, that it could prove any different state of facts from that which had been brought out; but in the argument for a new trial the defendant says:

"Suppose that testimony could be introduced to show that the motor, after being repaired, would be used in operating a bucket to lift cinders out of a pit and load them on a car to be thence carried and put on the roadbed as ballast."

Take that supposition as a fact. It would not bring the action under the Employers' Liability Act. The character of the act is fixed by what the servant was doing at the time of the injury. Repairing a motor which at some time in the past might have been used in interstate commerce, or which at some time in the future might be engaged in interstate commerce, would not bring the act of repairing within the law. In the case of Minneapolis & St. Louis Railroad Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, decided by the Supreme Court of the United States on January 8, 1917, it was held that a machinist helper, engaged in making repairs in the roundhouse upon an engine which had been used in hauling over the railroad company's lines freight trains carrying both intrastate and interstate freight, and which was used in the same way after the accident, was not then employed in interstate commerce, within the meaning of the federal Employers' Liability Act of April 22, 1908. The court said:

"Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events."

All the cases have held that, if the servant was not engaged in interstate commerce at the time of the injury, the Employers' Liability Act did not apply.

Upon this ground, the motion for a new trial is therefore refused.

SUPREME COURT OF CALIFORNIA.

EMPLOYERS' LIABILITY ASSUR. CORP., LTD., OF LONDON, ENG.,

V.

INDUSTRIAL ACCIDENT COMMISSION. (S. F. 8517.)*

1. ADMIRALTY - MARITIME CONTRACTS-EMPLOYER'S LIABILITY-JURISDICTION.

The exclusive maritime jurisdiction of the United States does not extend to claims arising out of work done on vessels prior to launching,

* Decision rendered, March 20, 1918. Rehearing denied, April 16, 1918. 171 Pac. Rep. 935.