a butcher, and in which he made use of divers pieces of machinery; namely, boilers, engines, motors, pulleys, grinding machines and divers other implements, tools and devices for preparing meats so butchered by him for the market, and more particularly for the grinding of said meat in order to make the same into sausage. But whether the defendant's business so described in the declaration falls within the purview of the Workmen's Compensation Law or not we think on demurrer it would be good as averring a good common-law action for negligence of the defendant to use due care to furnish plaintiff a safe place to work, a good machine to work with, and to keep it in good repair, and that the demurrer was therefore properly overruled. We should for this purpose treat the averments regarding the Workmen's Compensation Law and defendant's alleged negligence in failing to comply therewith as surplus

age.

The remaining points relied on involve the giving and refusing of instructions to the jury, and the action of the court on the motion of the defendant for a new trial. All six of the instructions requested by plaintiff were given as offered. Of the four requested by defendant, the first and second were given; 3 and 4 were refused. Defendant complains of plaintiff's instructions 2, 3, 4, 5 and 6, and of the action of the court in refusing his instructions 3 and 4.

[4] Instructions 2, 3 and 4 given for plaintiff all assume that the business of the defendant and his liability to plaintiff were governed by Workmen's Compensation Law and his omission to comply therewith by electing to pay the premiums required thereby, and that he was thereby deprived of his common-law defenses, and particularly that of the contributory negligence of the plaintiff. This theory of these instructions, in the light of the averments of the declaration and the facts disclosed by the evidence as to the nature of the defendant's business, constitutes the chief objection of the defendant thereto. As already observed, the declaration avers that the business of defendant was that of a butcher. The plaintiff himself swears that the business of defendant was that of a general store, "that he had a little of everything— meats and groceries, and flour, and everything." And in describing his employment he says:

"I got up in the morning, and done my work up at the slaughter house, worked about half an hour; then I came in to the store, and went out and solicited orders and worked around the store, and then in the afternoon they sent me down in the basement to grind meats, and cook meats, and that is when I got my hand taken off."

Defendant says his business was that of "meats and groceries,” and that the duties of plaintiff were "delivering and taking orders in the forenoon, and.in the afternoon taking care of the meat end, such as making sausage, or whatever we were doing; in the store he clerked-received and charged-had full sway, the same as I have or any of the balance of the help." And in describing the circumstances of the accident he says, "He was rendering lard and making this sausage; it was not a large amount-only a small amount-probably fifty pounds;" that to make fifty pounds of sausage on the style of machine used would take probably not more than twenty minutes, even when grinding it a second time.

The question is thus presented, whether the business of "butcher" as alleged in the declaration, or that of a general store in which his business was that of selling meats and groceries at retail with the incidental business of making sausage and render ng lard in the small way described in the evidence, brought the defendant under the involuntary requirements of the statute so as to render him liable to the plaintiff and the penalties imposed thereby, and the loss of his common-law defenses as assumed in these instructions. The contention of plaintiff is that the business of defendant brought him within sub-section "n" of section 18

of the act (sec. 674), classifying the industries subject to the act; and if not under that section, then it was comprehended within the provisions of sub-section "x," providing that:

"Any industry or business not specified in the foregoing schedules, for which any employer shall voluntarily apply to the commissioner to be brought under the provisions of this act; and the commissioner shall have the authority to classify and place in one of he schedules aforesaid, or any schedule created by him as hereinafter mentioned, any industry or business subject to this act not hereinbefore specifically mentioned."

And if not comprehended thereby, the further contention is that it is covered by section 9 (sec. 665) of said act, providing that:

"All persons, firms, associations and corporations regularly employing other persons for profit, or for the purpose of carrying on any form of industry or business in this state (casual employment excepted)," etc., and not falling within the business of employers "in domestic and agricultural service," specifically excepted by the act.

in

The first inquiry then is, does the business of butcher alleged, or that of selling meats and groceries in a small retail store, such as the evidence discloses in this case, though the meats sold are in whole or in part of animals slaughtered by such retail merchant, fall within schedule "n" of section 18, namely, "slaughter and packing houses, stock yards, soap, tallow, lard and grease manufactories, tanneries, which power driven machinery is used"? In our opinion such a business does not come within the provisions of this section. If so, then every little merchant who happens to butcher a few animals whose meat he cuts and retails to his customers in a grocery store, of which there are many, would be brought under the act. Perhaps, as counsel argue, the size of the business ought not to be regarded as controlling in the construction of the statute. A statute like this in derogation of the common law, and imposing restrictions upon common occupations of the people, should receive a strict construction. Rhodes v. Coal Co., 79 W. Va. 71, 90 S. E. 796, point 3 of the syllabus. Unless therefore the words of the statute strictly construed comprehend the business of defendant, it should by no strained construction be held to include it. The words "slaughter and packing houses" readily suggest a business where animals fit for food are slaughtered and their meats packed and prepared for market in considerable quantities, and in which power driven machinery is employed. Would anyone think for a moment that the Legislature by these words meant to include thereunder the business of a corner grocery where the owner does a retail business in meats and groceries and slaughters a few animals and cuts them up and sells their meats at retail in a small way? We do not think so. Strictly speaking the words "slaughter house" may include any place where animals are killed; there is no pretense that the defendant was engaged in packing meats or other products. The proof is that his manufacture of lard and sausage was for the daily sale thereof to his customers in small quantities. When we examine the various schedules in section 18, we find that they relate generally to the business of mining, manufacturing, railroads, operated or propelled by power driven machinery, telegraph and telephone lines, and construction works of various kinds. In none of them do we find dry goods or grocery stores, banks, fruit stands, jewelry stores, or businesses of like character. Counsel for plaintiff cite us to three cases; one from Georgia, one from Indiana, and the other from Louisana, in support of their construction of the statute. The question in the Georgia case was whether Kehrer, an agent or representative of Nelson Morris & Co., was subject to the occupational tax imposed by the statute upon agents of packing houses doing business in the state. It was decided

that he was. There is no question made that Morris & Company were large packers in the state of Illinois. They maintained a distributing house in Georgia, where they were represented by Kehrer as agent or salesman. It was held that notwithstanding Morris & Co., did not slaughter and pack meats in Georgia but sold them there through Kehrer, they were doing business as packers in Georgia; that selling meats in Georgia manufactured and packed in Illinois was doing the business of packers in Georgia; and that Kehrer was subject to the occupational tax. Stewart v. Kehrer, 115 Ga. 184, 41 S. E. 680. The Indiana case was an indictment for burning a mill, described as a mill-house, and upon a motion to quash, the question was whether mill-house was sufficiently decriptive of the offense prescribed by the statute. It was held that it was. The court said:

"There are slaughter-houses, packing-houses, smoke-houses, etc., indicating houses in which animals are slaughtered, meats packed and smoked, etc. So a mill-house,' we think, would readily be understood to be a building or house used for milling purposes." Ford v. State, 112 Ind. 373, 14 N. E, 241, citing Dugle v. State, 100 Ind. 259.

In the Louisiana case the question was whether the defendant was subject to a license tax for "carrying on the business of a slaughter house" imposed by the statute. The evidence showed that he killed one or two beeves a week, which were raised or pastured on his plantation and sold in his plantation store for which he paid a license as retail merchant and liquor dealer on the public road, and that most of the beeves were purchased originally in New Orleans. The manifest purpose of the statute was revenue, and we think the court rightly held the defendant liable for the tax regardless of the size of his business. Thibaut, Sheriff, v. Hebert 45 La. Ann. 838, 12 South. 931. But our statute must be construed with reference to the legislative intent as manifested by the entire enactment. In two or more of the schedules of section 18 some businesses are exempted. For example, those specified in schedule "m" are limited to factories in which power driven machinery is used; and schedule "v," which includes structural work on buildings, is limited to those over three stories high.

In further support of their proposition counsel for plaintiff rely on the expression of this court in Louis v. Smith-McCormick Construction Co.. 80 W. Va. 159. 92 S. E. 249, and Adkins v. Hope Engineering & Supply Co., 81 W. Va. 449, 94 S. E. 506, respecting the broad and inclusive scope of section 9 (sec. 665) of the act. While in these cases reference is made to the wide scope of this section, the business of the defendant in the first case clearly fell within schedules "v" and "w" of section 18; and in the latter case no question was made as to the fact that defendant's business, that of constructing a gas line, was covered by one of the schedules of said section. The principal question was whether on the facts plaintiff was entitled to recover for personal injuries sustained by his infant son fifteen years of age employed by defendant, and whether said infant was an employe as defined by said section 9. The court said that section makes no distinction as to age limit. What was said by the court in these cases should be construed with reference to the questions involved and so as not to do violence to the legislative intent manifested in the enactment.

[5] But what effect should be given to schedule "x", read in connection with said section 9? Clearly this schedule, which is made to cover "any industry or business not specified in the foregoing schedules, for which any employer shall voluntarily apply to the commissioner to be brought under the provisions of this act," does not bring such omitted industry or business under the act without the voluntary application of the employer. To be brought under the act such employer must apply to the commissioner, who must give him a classification and rate of pre

mium, unless, the commissioner, as he possibly may do under a subsequent provision of the schedule, himself bring such employer under the act by exercising the power thereby conferred. In these provisions the statute clearly recognizes the two classes; namely, first, those brought under the act involuntarily as it were by being named in the several schedules, and required to comply therewith upon pain of being denied their common-law defenses; and second, those submitting themselves voluntarily, and when so doing, all are subject to the act within the meaning of section 9; but the voluntary classes without such submission, or the special act of the commissioner, do not become subject to the act. Nor is such voluntary class of employers denied any of their commonlaw rights for neglecting voluntary submission to the statute. Analogous to the case presented here, is that of Barnett, Adm'r, v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150, where we held that section 26 (sec. 682) of the statute (Code 1913, c. 15P) did not operate to deprive employers engaged in both intra-state and inter-state businesses, unless and until, from the time they had elected, as they might under section 52 (sec. 708) by the method prescribed, to come under the act. This notwithstanding the broad and comprehensive scope of section 9.

[6] Our conclusion, therefore, is that plaintiff's instructions 2, 3, 4. and 6, ignoring and excluding defendant's theory of contributory negligence, and holding him subject to the Workmen's Compensation Law, were erroneous and should have been rejected.

Plaintiff's instruction No. 5, we think states the law correctly relative to the liability of the master for failing to comply with his promise to remedy dangerous and defective machinery and to provide a reasonably safe place to work; but as we have already observed, the declaration was defective in not averring reliance of the plaintiff on the defendant's promises and his failure to comply therewith in a reasonable time.

[7] Defendant's instruction No. 3 was, we think, rightly refused. It would have told the jury that if they believed from the evidence plaintiff was a general clerk in defendant's store and performing his duties set forth in the dclaration, and as such clerk had access to and right to use the feeders or feeder paddles in said stores as are named in the declaration and could have taken and used the same in the performance of his duties, and did not do so at the time of the accident, the jury should find for the defendant. The principal vice of this proposition is that it assumes the fact that there were in the store feeder paddles suitable for such use, or any feeder paddles, facts as to which there was little if any appreciable evidence offered by defendant, and facts which were denied by plaintiff. Whether the defendant was negligent in failing to furnish such an instrument, if one was not provided, or were in the store at the disposal of plaintiff, were questions which might properly have been submitted to the jury by a proper instruction. But the instruction in question was not competent in this respect.

[8] Defendant's instruction No. 4, we think, states a correct legal proposition applicable to his theory of the case. It would have told the jury that if they believed from the evidence that plaintiff knew there was a rapidly revolving screw at the edge of the lower hopper of the sausage grinding machine testified to in the case, and that his hand was likely to come in contact therewith in attempting to push meat down into the hopper, he must be held to have appreciated the danger and assumed the risk in attempting to do the work. Louis v. Smith-McCormick Construction Co., supra; Ashton v. Boston & Maine R. R. Co., 222 Mass. 65, 109 N E. 820, L. R. A. 1916B, 1281. The objection of the plaintiff and the ruling of the court thereon are that the instruction ignores the plaintiff's theory of a defective machine and failure to provide a suitable instrument to operate it as the cause of the injury. This would be a good objection if the instruction was a binding one telling the jury to find for the defendant; but it does not do so. It states a correct le

gal proposition on defendant's theory as to the facts, and was proper to go to the jury.

For the foregoing reasons, the judgment below must be reversed, the verdict set aside, and the defendant awarded a new trial.

SUPREME COURT OF WISCONSIN.

GEORGIA CASUALTY CO.

V.

AMERICAN MILLING CO.*

5. ADMIRALTY-JURISDICTION-SAYING OF COMMON-LAW

REMEDY-WORKMEN'S COMPENSATION.

Workmen's compensation laws provide remedies wholly unknown to the common law, which are incapable of enforcement by the ordinary process of any court, and are not saved to suitors by the saving clause of Judiciary Act Sept. 24, 1789, § 8 (U. S. Comp. St. § 1234), or Judicial Code, §§ 24 (3), 256 (U. S. Comp. St. §§ 991 [3], 1233), relating to admiralty jurisdiction.

(For other cases, see Admiralty, Dec. Dig. § 2.)

6. ADMIRALTY MARITIME INJURIES

STATE COURTS.

JURISDICTION OF

The common-law jurisdiction of the state courts over torts committed at sea is preserved by Judiciary Act Sept. 24, 1789, § 8 (U. S. Comp. St. § 1234), or Judicial Code, §§ 24 (3), 256 (U. S. Comp. St. §§ 991 [3], 1233), but remedies by proceedings in rem can only be administered in the admiralty courts.

(For other cases, see Admiralty, Dec. Dig. § 2.)

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge. Action by the Georgia Casualty Company agains the American Milling Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action brought by the plaintiff, as assignee of one Elmer Emerson, for personal injuries suffered by said Emerson as the result of the alleged negligence of the defendant company July 30, 1916. The facts are not materially in dispute. Emerson was a stevedore in the employ of the Duffy Stevedore Company, a copartnership, and was seriously injured during the unloading of the steamer La Salle, while that steamer was lying at the dock adjoining the defendant's elevator in the harbor at Superior.

The cargo was a cargo of screenings owned by Minneapolis parties, and it was being elevated into the elevator building for storage. The method was this: An adjustable spout, called a marine leg, was let down from the side of the elevator into the hold of the boat, in which operated an endless belt, equipped with buckets, which carried the grain up the leg into the elevator. For a time the buckets needed no assis*De ision rendered, April 29, 1919. 172 N. W.. Rep. 148.