say, in view of this record, that it is probable that. Lattimer's evidence, had it been before the jury, would have caused a different result in this case, and we are clearly of the opinion that his evidence cannot be said to have been newly discovered. Under such circumstances, we think it was the clear duty of the plaintiff in error to have moved for a postponement or continuance of his case when the same was called for trial, in order to procure the evidence of Lattimer, and, since it is apparent from the record that no such action was taken by him, we would not be authorized to hold that the court committed error in denying his motion for a new trial.

[6] The rule in this state is that motions for new trial based upon the ground of "newly discovered" evidence, in the proper sense of the term, are addressed to the sound discretion of the trial judge, and, where such motions are denied by him, the appellate court will not reverse the judgment for that reason, unless the latter court can say from the record that the trial court clearly abused the discretion which the law gives him in such matters, and in this instance this court is of the opinion that it would not be authorized to so hold.

In the case of Johnson v. Brown, 65 S. W. 485, the Court of Civil Appeals at San Antonio, speaking through Chief Justice James, held, in substance, that a new trial sought on the ground of newly discovered evidence was properly refused by the trial- judge, where the existence of such evidence was known at the time of the trial, but not the whereabouts of the witness, and no continuance or postponement was requested in order that such evidence might be had. We are of opinion that that case is squarely in point on the question here raised, and the holding there meets with our approval. See, also, De Hoyes v. G. H. & S. A. Ry. Co., 52 Tex. Civ. App. 543, 115 S. W. 75.

This disposes of all the assignments of error found in plaintiff in error's brief, and from what we have said above it follows that this court is of the opinion that none of them should be sustained, and that the trial court's judgment should be in all things affirmed; and it will be so ordered.

SUPREME COURT OF TEXAS.

VAUGHAN ET AL.

ข.

SOUTHERN SURETY INS. CO. (No. 3065.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-BENEFICIARIES-HOW DETERMINED.

Under Workmen's Compensation Act 1913, § 8 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246kk), declaring that compensation shall be paid to legal beneficiaries to be distributed according to the law of descent, the beneficiaries as well as the apportionment must be determined by that law, and not by article 4698, Vernon's Sayles' Ann. Civ. St. 1914, governing recovery of damages for wrongful death.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

* Decision rendered, Dec. 11, 1918. 206 S. W. Rep. 920.

Error to Court of Civil Appeals of Ninth Supreme Judicial District. Proceeding for workmen's compensation by F. G. Vaughan and others against the Southwestern Surety Insurance Company, as insurer. From a judgment of the Court of Civil Appeals (195 S. W. 261) in favor of the insurance company, the plaintiffs bring error. Reversed and rendered.

C. W. Howth, F. G. Vaughan, and W. A. Williams, all of Beaumont, for plaintiffs in error.

McDonald Meachum, W. W. Meachum, Jr., Woods, King & John, and Cole & Cole, all of Houston, and McDonald & Wayman, of Galveston, amici curiæ.

Andrews, Streetman, Burns & Logue, of Houston, for defendant in

error.

PHILLIPS, C. J. In fixing the compensation to be paid for injury to an employee of a subscribing employer, sustained in the course of his employment and resulting in death, the Workmen's Compensation Act of 1913 (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]) omitted any express designation of the beneficiaries entitled to receive the compensation. It merely declared (section 8; art. 5246kk) that it should be paid to "the legal beneficiary" of the deceased employee, with a proviso in the following language:

"Provided, that the compensation herein provided for shall be distributed according to the law providing for the distribution of other property of deceased."

The question here is, how shall the beneficiaries in such cases be determined, by the law of descent and distribution, or the law governing the recovery of damages for negligent or wrongful injury resulting in death-the death injury statute, Article 4698?

The act was amended in this particular in 1917, Acts 35th Leg. c. 103, § 8a (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-15), by expressly naming the beneficiaries. This case arises under the original act.

[1] The solution of the question is found in the proviso. It says that the compensation shall be distributed "according to the law providing for the distribution of other property of the deceased." Interpretation can add nothing to the clearness of this language. It means the law governing the distribution of the decedent's property, not a law authorizing the recovery of damages by certain kindred as their property. The only law we have regulating the distribution of the property of an intestate decedent is that comprised by our statutes of descent and distribution. That is plainly the law referred to. It is, in effect, made a part of

the act.

It is urged, however, that at all events the proviso only means that the compensation shall be apportioned according to that law, and that the beneficiaries among whom it is to be thus allotted are to be ascertained from the death injury statute. The act in no wise relates the subject to that statute by any express provision. If it determines the beneficiaries under the act, it is wholly by implication.

Upon what theory the death injury statute, to the exclusion of another relevant law, is for this purpose by mere implication to be read into the act, we have some difficulty in perceiving. If it be on account of any supposed analogy-and no other ground can well be advanced- it is to be observed that the act, in respect to injuries sustained by those to whom it applies, was intended to entirely supplant that statute as to all actual damages thereunder recoverable. Its purpose was to work in such cases a distinct change in the law. Its provision for the compensation allowed is founded upon a different theory. The compensation itself is determined by another method. Under the death injury statute, actual damages were not recoverable unless pecuniary loss to the plaintiffs was

shown Under the act, the compensation allowed the beneficiaries entitled is absolute, regardless of whether they have sustained any such loss.

With the entire scheme of the death injury statute in its application to all such cases thus entirely abandoned, in the absence of any express provision the reasonable presumption is that the Legislature did not intend it to govern the operation of the act in any particular. Certainly it should not, by mere implication, control its operation in this particular, as against a law to which the subject is by the act expressly related. If the contrary he held and the beneficiaries be thus determined, no rule would be afforded for the apportionment of the compensation. The death injury statute is silent on the subject. All damages recoverable under it must be allotted by a court or jury. The law of descent and distribution, in such event, would have to be consulted for the apportionment, since the act, except in its reference to that law, makes no provision in that regard. Under such construction, the operation of the act would, in this one particular, be related to two other distinct laws, one for determining the persons entitled to the compensation, and another the proportion of their respective shares. Under the terms of the act such a purpose is not to be imputed to the Legislature in its adoption. Apart from these considerations, this construction denies to the language of the proviso its natural effect. Its plain requirement is that the compensation shall be distributed according to the law of descent and distribution. The clause contains no qualifying expression, and no limitation upon the full operation of such law is imposed. It therefore means that the distribution shall be in all respects in accordance with that law. A distribution could not be made "according to" that law unless the law were given full effect-not merely a part of it, but all of it. Giving it such effect, it necessarily determines not only the apportionment, but the persons entitled to the property.

[2] In the face of the plain provision of the act we are not at liberty to speculate upon the intention of the Legislature in its enactment. Nor is it necessary that we attempt to reconcile any inconsistencies that its operation may entail. The wisdom of the act is not a judicial question. The argument that it may allow certain kindred of the deceased employee to share in the compensation who were denied any right of action under another statute, cannot prevail over its express terms. It may in this respect operate unfairly, but that was for the determination of the Legislature. As is said by a competent authority, the remedy for a harsh law is not judicial interpretation, but its amendment or repeal. The judgments of the District Court and Court of Civil Appeals are reversed, and since the case is here upon an agreed statement, judgment will be rendered for the plaintiffs in error for the amount stipulated in the statement with legal interest.

SUPREME COURT OF WISCONSIN.

ANDERSON
V.

MILLER SCRAP IRON CO. et al.*

1. MASTER AND SERVANT-WORKMEN'S ACT-LIABILITY.

COMPENSATION

The Workmen's Compensation Act has substituted another liability in the place of the employer's common-law liability in tort; but it does not necessarily follow that the principles applicable to torts should be applied to this new liability.

(For other cases, see Master and Servant, Dec. Dig. § 346.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION ACT-INJURIES OCCURRING OUTSIDE THE STATE.

That Workmen's Compensation Act, § 2394-1, abolishes certain common-law defenses "within the state," and that the act is made applicable to minors legally employed under the “laws of this state," does not, in view of the unqualified language of section 2394-3, show an intention to limit the act to injuries occurring within the state.

(For other cases, see Master and Servant, Dec. Dig. § 369.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-CONSTRUCTION-INJURIES WITHOUT THE STATE. The Workmen's Compensation Act is so far a part of every contract of employment that the rights and liabilities of the parties thereto, in case of injury to the employee, must be determined in accordance with its provision whether such injury occur within or without the state.

(For other cases, see Master and Servant, Dec. Dig. § 369.)

Appeal from Municipal Court of Brown County; N. J. Monahan, Judge.

Action by Katherine Anderson, as administratrix of the estate of Joseph Boncher, deceased, against the Miller Scrap Iron Company and another. Judgment for plaintiff, and defendants appeal. Judgment reversed, and cause remanded.

Personal. injury. The defendant company is a Wisconsin corporation, having its principal place of business at Green Bay. Joseph Boncher was a resident of Wisconsin, an employee of the defendant company. The business of the compa:y, a dealer in scrap iron and steel, was carried on almost entirely within the state of Wisconsin. Nearly all of Boncher's services had been rendered within the state. Prior to the time of the accident, which occurred on June 30, 1917, the company had purchased the scrap on a small piece of narrow gauge railroad near Gibb's farm, a place about 10 miles from Iron River, Mich. The work of gathering this scrap was under the personal direction of the defendant Herman Miller. The employees of the company boarded at Iron River, and went to and from their work in an automobile. On the second day, as they were going to work, the automobile, which was being driven by Herman Miller, * Decision rendered, Jan. 7, 1919. 170 N. W. Rep. 275.

was overturned, and Boncher suffered injuries from which he afterwards died. The action is brought by the administratrix of his estate to recover damages for the injuries sustained by Boncher and for his death. The liability of the defendants is predicated upon the survival statute of the state of Michigan. There was a verdict in favor of the plaintiff, finding the defendants guilty of negligence, and judgment was entered thereon for $4,116.59 damages and costs, from which judgment the defendants appeal. Other material facts will be stated in the opinion.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellant Miller Scrap Iron Co.

Kittell, Joseph & Redfield, of Green Bay, for appellant Miller.
Kaftan & Reynolds, of Green Bay, for respondent.

Peter Fisher, of Kenosha, and Worth E. Caylor, of Chicago, Ill., amici curiæ.

ROSENBERRY, J. (after stating the facts as above). The plaintiff claims the right to recover damages under the laws of the state of Michigan for the injury and death of Boncher, on the ground that the defendant company and its agent, Herman Miller, were negligent. The defendants claim that the liability of the defendant company is that prescribed by the Workmen's Compensation Act of Wisconsin (St. 1917, §§ 2394-1 to 2394-95), and inasmuch as the plaintiff has requested that, in the event it is held that the Workmen's Compensation Act applies to the company, the judgment shall be reversed as to both defendants, we will first consider that question.

The plaintiff's contention is that the injuries to the deceased, Boncher, having occurred within the state of Michigan, the rights, and liabilities of the parties must be determined in accordance with the law of the state of Michigan; that the Workmen's Compensation Act of the state of 'Wisconsin cannot affect the rights, duties, and liabilities of the defendant company, because such act can have no extraterritorial effect. On behalf of the defendant company it is claimed that, this being an action in a Wisconsin court, both parties to which reside within the state of Wisconsin, and the contract of employment having been made within this state, at least in the courts of this state, the rights, duties, and liabilities of the defendant company are those prescribed by the Workmen's Compensation Act.

Prior to the enactment of the Workmen's Compensation Act the liability of the employer was that prescribed by the common law, as modified by statute. The liability was held not to be one ex contractu, but one ex délicto, and the liability was held to result from the wrong which followed from the failure of the employer to discharge the duty which he owed to his employee to observe that degree of care which the law required of him. An action to enforce a claim against the employer for violation of his duty was therefore an action ex delicto, and the principles governing tort actions were applied. An action for personal injuries, being in its nature transitory, might be brought in any court having jurisdiction of the parties; but, wherever brought, the rights and liabilities of the parties were determined by the law of the place where the injury occurred. Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859. The injuries sustained by the deceased, Boncher, having resulted from an accident which happened in Michigan, the plaintiff claims the benefit of this established principle of law, and seeks to enforce the liability of the defendants therefor in accordance with the laws of the state of Michigan, and such would be the plaintiff's undoubted right, but for the Wisconsin Workmen's Compensation Act.

[1] It is claimed that the scheme of compensation provided by the Workmen's Compensation Act is a substitute for the common-law liability