SUPREME COURT OF NEW HAMPSHIRE.

HILLSBOROUGH.

ROCKWELL

ข.

HUSTIS.*

HOLDEN

V.

SAME.*

2. MASTER AND SERVANT—INJURIES TO SERVANT — FEDERAL EMPLOYERS' LIABILITY ACT-FELLOW-SERVANT DOCTRINE.

In an action under the federal Employers' Liability Act (U. S. Comp. St. 1916, §§ 8657-8665) for injuries to a servant, the fellow-servant doctrine has no application.

(For other cases, see Master and Servant, Dec. Dig. § 228[1].)

4. MASTER AND SERVANT-INJURIES

DENCE-ADMISSIBILITY-CUSTOM.

TO

SERVANT-EVI

In action for injuries when section hand was drawn under wheels of motor car, derailing the car and injuring other servants, evidence that the company had other cars with smaller wheels, which would not draw men under them, was competent, not to show custom, but to show the company's knowledge that the car in question was not reasonably safe. (For other cases, see Master and Servant, Dec. Dig. § 270[13].)

Transferred from Superior Court, Hillsborough County; Marble,

Judge.

Two actions, by Dearborn S. Rockwell and by Henry Holden, against J. H. Hustis, receiver. of Boston & Maine Railroad. The cases were tried together, and resulted in verdicts for plaintiffs and a denial of defendant's motions for nonsuit and directed verdict, subject to exceptions. Cases transferred; exceptions overruled; judgments on verdicts.

Doyle & Lucier, of Nashua (A. J. Lucier, of Nashua, orally), for plaintiffs.

Jones, Warren, Wilson & Manning, of Manchester (Geo. H. Warren, of Manchester, orally), for defendant.

WALKER, J. The evidence tended to show the following facts: The plaintiffs were employed by the defendant as section hands, and were engaged in that employment when they received the injuries on account of which these suits were brought. They were riding upon a motor-driven section car with six other employees, and on account of the size of the car they were obliged to sit close together upon a narrow seat running lengthwise of of the car, four facing in one direction and four in the other. * Decision rendered, June 29, 1918. 104 Atl. Rep. 127.

Upon the floor were various tools used by them in their work. which prevented them from placing their feet firmly upon the floor. There was an iron rail two or three inches high upon the sides of the car, upon which they put their feet to support themselves. The car was going at the rate of 10 or 12 miles an hour on a curve in the track of about four degrees. One of the men, Thompson by name, who was sitting at the front end of the car on the left-hand side, for some reason lost his balance, his feet came in contact with the forward wheel of the car, and he fell or was drawn under the wheel, which passed over his body, inflicting fatal injuries. As a result the car was derailed, and the other men were thrown from the car. In this way the plaintiffs received their injuries.

[1, 2] Several grounds upon which a recovery is sought have been argued. But upon a motion for a nonsuit, if one of them is in law sufficient, the others need not be considered. No exceptions were taken to the charge of the court. The claim is made that the foreman of the crew who operated the car managed it in a negligent manner, which caused Thompson to be thrown or pulled under the wheel, and consequently that his negligence was the proximate cause of the plaintiffs' injuries. As it is conceded that the action is governed by the federal statute (Act April 22, 1908, c. 149, 35 U. S. Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) the fellow-servant doctrine has no application. Topore v. Railroad, 78 N. H. 311, 100 Atl. 153. The contention of the defendant is that there is no sufficient evidence of negligence by the foreman in operating the car.

[3] An examination of the evidence leads to the conclusion that the jury were warranted in finding that the plaintiff's injuries were due in part at least to the foreman's negligence. It is not disputed that Thompson's fall or sliding out onto the wheel occurred when the foreman either increased or decreased the power. It was also in evidence that at that instant of time the car "jumped," or "twisted," or "lurched," and that that sudden movement threw Thompson off. This evidence, in view of the circumstances, is amply sufficient to account for the accident.

But it is necessary to consider whether the foreman was negligent in the way he managed the car. It seems to have been his custom, known by the other section men, to reduce the speed before or at the time of reaching the curve, while in this instance he was half way around the curve when he regulated the speed. It was an unusual place for him to perform that act, the men were not anticipating he would attempt it at that place, and the jury may have believed that it was a dangerous thing to dosuch a thing as reasonably prudent men would not do upon a curvature of that character. While the speed of the car may not have been excessive, it was competent for the jury to find that it was

sufficient at that place, when change by the foreman by increasing or decreasing the power, to cause the car to suddenly sway and throw Thompson upon the wheel. Further evidence of negligence was unnecessary to support the verdicts. Boucher v. Larochelle, 74 N. H. 433, 68 Atl. 870, 15 L. R. A. (N. S.) 416; Castonia v. Railroad, 78 N. H. 348, 100 Atl. 601.

[4] Subject to exception, the plaintiff introduced evidence that upon another line of its road 12 motor cars were in use in which the wheels did not extend above the floor of the car, as they did in the car in question, and that for that reason they would not carry or pull one under the car, whose feet happened to reach over the side of the car. The evidence was not introduced to prove a custom of railroad companies to use cars of that construction, as argued by the defendant, but to prove the knowledge of the defendant that the car the plaintiffs were employed to use was not a reasonably safe car, and that the defendant was negligent in this respect. The competency of the evidence cannot be doubted. Warburton v. Company, 75 N. H. 592, 72 Atl. 826. Other exceptions to the evidence are without merit and do not require extended consideration.

Exceptions overruled; judgment on the verdicts. All concurred...

COURT OF APPEALS OF NEW YORK.

DOEY
ບ.

CLARENCE P. HOWLAND CO., INC., ET AL.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

3. MASTER AND SERVANT-WORKMEN'S COMPENSATIONAWARD.

An award under Workmen's Compensation Law (Consol. Laws, c. 67), is not made on the theory that a tort has been committed, but upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract of emplpoyment. (For other cases, see Master and Servant, Dec. Dig. § 346.)

7. MASTER AND SERVANT-WORKMEN'S COMPENSATION— JURISDICTION—WAIVER.

Where, although the federal courts had exclusive jurisdiction over a claim for employee's death occurring in performance of a maritime contract, the State Industrial Commission assumed to make an award therefor under the Workmen's Compensation Law, the fact that both employer and insurance carrier acquiesced in the award to the extent that * Decision rendered, June 4, 1918. 120 N. E. Rep. 53.

certain payments were made thereunder, and no appeal was taken therefrom, did not estop them thereafter from questioning the commission's jurisdiction; the award being a nullity.

(For other cases, see Master and Servant, Dec. Dig. § 397.)

Appeal from Supreme Court, Appellate Division, Third Department. Claim under the Workmen's Compensation Law by Margaret Doey, for herself and children, for the death of Patrick Doey, employee, against the Clarence P. Howland Company, Incorporated, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier. From an order of the Appellate Division (182 App. Div. 152, 169 N. Y. Supp. 645) reversing by divided court, an order of the State Industrial Commission, the Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), and Jeremiah F. Connor, of Oneida, for appellant.

Merwyn H. Nellis, of Albany, for respondents.

MCLAUGHLIN, J. On the 31st of July, 1916, Patrick Doey, an employee of Clarence P. Howland Company, Incorporated, while engaged in making repairs on the steamship Normandie, lost his life by falling down a hatchway. His widow, on behalf of herself and infant children, filed a claim with the State Industrial Commission, under chapter 41 of the Laws of 1914, for compensation for his death. The commission recognized the validity of the claim and in March, 1917, made an award directing that the same be satisfied by weekly payments. The employer and insurance carrier, acquiesced in the award until May 21, 1917, when the Supreme Court of the United States handed down its decisions in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900, and Clyde Steamship Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116, holding that the New York State Workmen's Compensation Law (Laws of 1914, c. 41 [Consol. Laws, c. 67]), in so far as it applied to contracts maritime in nature, was void, inasmuch as the same was in contravention of Article 3, § 2, of the federal Constitution, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction; also in contravention of section 9 of the Judiciary Act of 1789, continued in Judicial Code 1911, §§ 24 and 256 (36 Statutes at Large, 1091, 1160, c. 231; Comp. Statutes 916, §§ 991, 1233), by which the District Courts of the United States are given "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors, in all cases, the right of a common-law remedy, where a common law is competent to give it."

After these decisions had been rendered the employer and insurance carrier moved to vacate the award, on the ground that the State Industrial Commission did not have jurisdiction to make the same. The application was denied and an appeal then taken to the Appellate Division, where the determination of the

commission was, by divided court, reversed, and the award vacated. From this order the Industrial Commission appeals to this court.

Two questions are presented: (a) Was Doey, at the time of his death, engaged in the performance of a maritime contract? (b) If so, were the respondents, after having recognized the validity of the award by making payments thereon and not appealing therefrom, in a position to question the jurisdiction of the commission?

[1] If the first question be answered in the affirmative, then it necessarily follows from the decisions of the Supreme Court of the United States above referred to that the commission had no authority to make the award in question. In determining whether a contract be of a maritime nature, locality is not controlling, since the true test is the subject-matter of the contract-the nature and character of the work to be done. Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319.

[2] In torts the rule is different. There jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters. Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157.

[3] An award under the Workmen's Compensation Law is not made on the theory that a tort had been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. Matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158. The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the employee be injured, will pay to him a certain sum to compensate for the injuries sustained, or, if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrongdoing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment.

[4] In the present case, upon the conceded facts, I am of the opinion that Doey was, at the time he met his death, engaged in the performance of a maritime contract. His employer had taken a contract to repair an ocean-going vessel, preparatory to its taking of a cargo of grain. Doey was one of several carpenters employed to make the necessary changes. He was at the time he was killed engaged in such work on a steamship then in navigable waters. The contract to make the changes was certainly maritime in its nature. Preparing a steamship to receive a cargo is as much maritime in nature as putting the cargo on or taking it from the ship. Nor was the nature of the contract changed in any way because the contractor did not actually do the work himself, but employed others to do it for him. Doey's