subject to the provisions of the act, unless either party shall have notified the other in writing, not less than 30 days before the accident, of his intention that the provisions of the act should not apply.

As the contract of hiring, in the case before us, was made after the Act No. 20 of 1914 went into effect, we need not consider subsection 2, but must look to subsection 3, of section 3, to determine how and under what circumstances it shall be presumed or implied that the parties to the contract agreed or elected to be governed by the statute. That subsection declares that every contract of hiring, verbal, written, or implied, made subsequent to the time provided for the act to take effect, between an employer and employee engaged in the trades, businesses, or occupations that are specified or may be determined to be hazardous, shall be presumed to have been made subject to the provisions of the act, unless there be, as a part of said contract, an express statement in writing, not less than 30 days prior to the accident, either in the contract itself or by written notice by either party to the other, that the provisions of the act (other than sections 4 and 5) are not intended to apply; and the subsection concludes with a repetition that, unless there be such written agreement or notice, not less than 30 days old, "it shall be presumed that the parties have elected to be subject to the provisions of this act and to be bound thereby." We find, therefore, not only that subsection 1 of section 3 harmonizes with, but that it is not complete without, the provisions of subsection 3 of the same section.

The decision in Woodruff v. Producers' Oil Co., being founded upon a wrong premise, must be overruled. Our failure to discover the error sooner is largely attributable to the fact that the question was not considered in the case until it came up on rehearing, and, as a second rehearing was not allowed, the question was not reconsidered. The decision is in conflict with the ruling on the same question in the case of Effie Boyer v. Crescent Paper Box Factory, Inc. (No. 22434) 78 South. 596 (not yet officially reported). In the latter case, a rehearing was granted, and, on rehearing, the judgment allowing the plaintiff damages under article 2315 of the Civil Code was affirmed because it was held that the Act No. 20 of 1914 (before it was amended by the Act No. 243 of 1916) made no provision for such an injury as the plaintiff had suffered, and therefore did not deprive her of her right or remedy under the Civil Code. The ruling made in the original opinion that Effie Boyer's Case was not excluded from the provisions of the Employers' Liability Act, merely because the accident happened within the 30 days following the date of her employment, was not reversed on rehearing. On the contrary, it was in effect affirmed, and the decision in the case of Woodruff v. Producers' Oil Co. was in effect overruled; because, if the decision in Woodruff's Case had remained undisturbed, the Employers' Liability Act would have had no application whatever to Effie Boyer's Case, and there would have been no occasion then for deciding that the act made no provision for the injury she suffered.

It is argued that, in so far as subsection 3 of section 3 of the statute purports to suspend, for a period of 30 days, the force and effect of an agreement between an employer and employee not to be governed by the Act No. 20 of 1914, the law is unconstitutional and invalid, because it is an attempt to deprive the individuals of their fundamental right to contract with regard to a matter concerning themselves alone. It is said that, if that provision of the statute is valid legislation, an employer and employee, engaged in a business or occupation that is specified or that might be determined to be hazardous, can never bind themselves by an agreement that a contract of employemnt, for a period less than 30 days, shall not be governed by the Employers' Liability Act.

[3] There is no occasion here for deciding the interesting constitutional question thus presented, because there was no agreement between the employer and employee, nor written notice given by either party to the

Vol. II-Comp. 52.

other, that the provisions of the Employers' Liability Act were not to apply to their contract of employment. It is said that, if such an agreement had been made, or notice given, it would have had no effect, according to the statute, because the accident happened within the 30 days following the date of employment; hence it is argued that the plaintiff is in no worse position than if an agreement had been made, or notice given, not to be governed by the Employers' Liability Act. That argument, however, assumes, for the purpose of dispensing with the necessity of the agreement or notice, that the provision of the law is valid, and it assumes, for the purpose of exempting the plaintiff from the provisions of the law, that it is not valid. It is either valid or invalid legislation. If valid, the case would be governed by the statute, even if the agreement had been made, or notice given to the contrary; if invalid, the employee should have given the notice and it would have had effect, notwithstanding the provision of the law to the contrary. We cannot give the plaintiff the benefit of a contract that was not made, or notice that was not given, on the ground that, if the contract had been made or notice had been given, it would have had effect notwithstanding the statute to the contrary.

Our conclusion is that the plaintiff's case comes within the provisions of the Employers' Liability Act, section 34 of which declares:

"That the rights and remedies herein granted to an employee on account of a personal injury for which he is entitled to compensation under this act shall be exclusively of all other rights and remedies of such employee, his personal representatives, dependents, relations, or otherwise, on account of such injury."

The judgment rejecting the demand for damages under article 2315 of the Civil Code is therefore correct.

As to the alternative demand for compensation under the Employers' Liability Act, we find no merit in the exception of no cause of action. It could be sustained only upon the assumption that the defendant was, or might have been, willing to pay the amount sued for, for all that was said in the original petition. Our opinion is that the petition did state the nature of the dispute and the contention of the petitioner with reference thereto, as required by the first paragraph of section 18 of the Act No. 20 of 1914.

[4] For that reason, also, we find no merit in the plea of prescription based upon the contention that the original petition did not set forth a cause of action, and upon the fact that the supplemental petition was not filed within the year following the date of the accident.

[5] We conclude also that the demand for compensation under the Employers' Liability Act was not waived and should not be dismissed, merely because it was urged in the alternative and only in the event the court should hold that the plaintiff was. not entitled to damages under article 2315 of the Civil Code. The argument that the defendant was entitled to a trial by jury on the primary demand for damages, but not on the alternative demand for compensation, loses its force when we consider that it was the province of the judge alone to decide, before the trial of either demand on its merits, whether the plaintiff had a right of action for damages under article 2315 of the Civil Code, and that question depended solely upon the question of constitutionalilty of the Act No. 20 of. 1914.

[6] On the merits of the demand for compensation, we agree with the district judge that the evdence is not so certain as to the amount of the average weekly wages the plaintiff's son earned, nor as to the amount he contributed to her support, as to enable the court to determine what compensation, if any, should be allowed. But we are of the opinion that the district judge should have reopened the case to permit the plaintiff to introduce more evidence on those questions, instead of rendering a judgment of nonsuit. The spirit, if not the letter, of the statute should have prompted a reopening of the case rather than a dismissal of the suit for

want of sufficient evidence to enable the judge to determine the rate of compensation to be allowed, when it appeared that some compensation was due. The fourth subsection of section 18 of the Employers' Liability Act declares that, in a suit for compensation under the act, the judge shall not be bound by the usual common-law or statutory rules of evidence, nor by any technical or formal rules of procedure other than as provided in the act, and that he shall decide the merits of the controversy as equitably, summarily, and simply as may-be. We have concluded therefore to set aside the judgment of nonsuit on the demand for compensation and remand the case to allow the plaintiff to introduce more evidence as to the amount of the average weekly wages her son was earning and as to the amount he contributed to her support.

The judgment rejecting the demand for damages is affirmed, the judgment of nonsuit of the demand for compensation is annulled, and the case is ordered remanded to the district court to admit more evidence as to the amount of the average weekly wages the plaintiff's son earned and the amount he contributed to her support. The appellee is to pay the costs of appeal; the costs of the district court to depend upon the final judgment.

MONROE, C. J., dissents, being of opinion that plaintiff is entitled to recover under Civ. Code, art. 2315.

LECHE, J. (dissenting). The faculty to bind one's self as one pleases, so long as the contract is not against public policy, or against good morals, is an inherent attribute of personal liberty. It is considered a property right, the protection of which is guaranteed by the Constitution of the state and of the United States, and can neither be abridged nor destroyed by the Legislature. So that whenever the Legislature, except for canses based upon the common good and in the clear exercise of its police power, interferes with the freedom of contract of its citizens or of any class of its citizens, its action is in violation of the property rights of such citizens as recognized and guaranteed by the Constitution. Constitution, art. 2: 6 Ruling Case I.aw, p. 269, pars. 254, 255; 12 Corpus Juris, p. 948, par. 460; Frisbie v. United States, 157 U. S. 165, 15 Sup. Ct. 586, 39 L. Ed. 657; State v. Gantz, 124 La. 541, 50 South. 524, 24 L. R. A. (N. S.) 1072; State v. Bonneval, 128 La. 910, 55 South. 569, Ann. Cas. 1912C, 837; State v. Legendre, 138 La. 157, 70 South. 70, L. R. A. 1916B, 1270.

With this well recognized rule as a guide, let us now consider the predominant issue in this case.

The provisions of the Employers' Liability Act, which control the question to be discussed, omitting the language which has no bearing thereon, read as follows:

"Sec. 3. (1) Be it

* *

enacted, etc., that this act * shall not apply to any employer or employee * unless prior to the injury they shall have so elected by agreement, either express or implied, as hereinafter provided. * *

"(2)

"(3) Every contract

made subsequent to the time provided for this act to take effect, shall be presumed to have been made subject to the provisions of this act, unless there be as a part of said contract an express statement in writing not less than thirty days prior to the accident. either in the contract itself or by written notice by either party to the other, that the provisions of this act * are not intended to apply, and it shall be presumed that the parties have elected to be subject to the provisions of this act and to be bound thereby."

* *

The language of the first-quoted paragraph conveys distinctly the idea that the act shall not apply to a contract of employment unless the contrary has been agreed upon by the parties either expressly or impliedly as

thereinafter provided. Referring then to paragraph 3 to ascertain what is meant by an express or implied agreement not subject to the provisions of the act, we find that such an agreement cannot be made so that it may apply for the first 30 days of the employment. We further find that, although the first paragraph expressly recognizes the freedom of contract or the right to elect, the third paragraph makes it impossible to enter into a contract not subject to the provisions of the act during the first 30 days of its existence. Again, we find that a contract of employment for one day, or for one, two, three, or' four weeks, although the parties might wish otherwise, cannot, under any circumstances or conditions, be taken out of the operation of the act. In other words, a general rule sanctioned by law is stated and is made subject to exceptions, and, when the exceptions are stated, they completely nullify the rule.

The first paragraph of section 3 enunciates a general rule which it was perfectly competent for the Legislature to adopt, because it in no manner interferes with the freedom of contract. It then purports to proceed by a process of climination, in paragraphs 2 and 3, to state the legal presumptions that will arise, where the parties do not avail themselves of that freedom or fail to elect whether they will be subject to the provisions of the act. But in point of fact the third paragraph, the one which controls in this case, takes away from the parties the opportunity to exercise that freedom during the first 30 days of existence of the contract. So that the apparent freedom of contract recognized by the first paragraph of section 3 is entirely taken away by the third paragraph, for the first 30 days of a contract of employment and that is wherein the two paragraphs are inconsistent, as stated in the case of Woodruff v. Producers' Oil Co., 142 La. 368, 76 South, 803. That decision then proceeds for the reasons therein stated, to give paragraph 3 the only construction which will harmonize it with paragraph 1, and unless that interpretation is adhered to, paragraph 3 must be held unconstitutional as depriving a class of citizens, employers, and employees, of their right to contract as they please. But courts must, when possible, avoid the latter course and give to a statute an interpretation that will put into it constitutional life, rather than one that will strike it with constitutional death.

Believing then that this reasoning is sound, the question here resolves itself into one of statutory construction, and is simply whether we should adopt a construction which makes paragraph 3 constitutional and in harmony with paragraph 1, or whether we should adopt a construction which clearly renders it unconstitutional and in conflict with said paragraph 1.

In my humble opinion, to hold that Philps lost the benefit of a harmonious and constitutional interpretation of paragraph 3 of section 3, according to which he should not come under the provisions of the Employers' Liability Act, because he failed to insert such a condition in the contract or to give his employer written notice to that effect, is to beg the question. Philps should not thus be deprived of his constitutional right to freedom of contract without his consent. It seems to me that the ruling in Woodruff v. Producers' Oil Company is correct, and that the present case should be disposed of in accordance with that ruling.

COURT OF APPEALS OF MARYLAND.

BALTIMORE CAR FOUNDRY CO.

V.

RUZICKA. (No. 33.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EXTENT OF LIABILITY—“WILLFUL MISCONDUCT.".

Employee of car manufacturing concern, who crosses track between two cars after being warned not to cross track because cars were to be coupled, although negligent, is not guilty of "willful misconduct" within Workmen's Compensation Law (Code Pub. Civ. Laws, vol. 3, art. 101, as amended by Laws 1916, c. 597, § 1) § 46; no act being willful unless intentional.

(For other cases, see Master and Servant, Dec. Dig. § 380.)

(For other definitions, see Words and Phrases, First and Second Series, Willful misconduct.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "ARISING OUT OF AND IN COURSE OF EMPLOYMENT."

Where shop employee was killed immediately after day's work while walking toward shop exit, his death arose out of and in course of employment, although on way out of shop he was not using board walk intended to be used by employees going to and from work; there being no enforced rule requiring use therof.

(For other cases, see Master and Servant, Dec. Dig. § 375[2].)

Appeal from Circuit Court, Anne Arundel County; Robert Moss, Judge.

"To be officially reported."

Proceedings under the Workmen's Compensation Law for death of Frank J. Ruzicka by Sophia Ruzicka, opposed by the Baltimore Car Foundry Company, employer. From a judgment of the circuit court, affirming an order of the State Industrial Accident Commission denying an award, petitioner appeals. Affirmed.

Argued before Boyd, C. J., and Briscoe, Thomas, Urner, and Stockbridge, JJ.

Edward Duffy, of Baltimore, for appellant.

Edward J. Colgan, Jr., of Baltimore (Frank J. Pintner, of Baltimore, on the brief), for appellee.

URNER, J. Upon this appeal from a judgment of the circuit court for Anne Arundel county, affirming an order of the State Industrial Accident Commission, the main question to be decided is whether the death of Frank J. Ruzicka, to whose widow an award was made by the commission under the Workmen's Compensation Law (Code Pub. Civ. Laws, vol. 3, art. 101, as amended by Laws 1916, c. 597, § 1), was the result of his "will--ful misconduct" within the meaning of that statute, which by its fortysixth section provides that:

"No employee or dependent of any employee shall be entitled to receive any compensation or benefits under this Act, on account of any * Decision rendered, April 3, 1918. 104 Atl. Rep. 167.