interests of creditors. In many cases such interests are best subserved by adjudicating upon a voluntary petition, thus saving delay, litigation and expense in procuring an adjudication; but notice of the filing of the voluntary petition should have been given to the petitioning creditors, and opportunity thus afforded to determine the course most likely to conserve the interests of the estate. The fact, however, that adjudication was made under the voluntary petition did not preclude jurisdiction to protect the rights of creditors under the involuntary petition. The record does not make it clear whether the action of June 26th, under review, was taken upon a consideration of the merits, or because of a supposed lack of jurisdiction to grant petitioners the relief asked. If upon the merits, we think that on the record here presented discretion was improvidently exercised.

[6] But this conclusion does not necessarily require the setting aside of the adjudication already had. It is still within the power of the court to preserve the rights of creditors as against the alleged preferential transfer by amending the order of adjudication so as to make it without prejudice to the rights of creditors gained by the filing of the involuntary petition, and by permitting petitioners to have action on their petition if found necessary to protect rights which would be lost under the adjudication on the voluntary petition alone; and while it was entirely proper to consolidate the voluntary and involuntary proceedings, relief under the involuntary petition is, at the least, doubtful without the amendment asked. We cite several decisions which we think support the views we have expressed. In re Dwyer (D. C.) 112 Fed. 777 (opinion by Judge Amidon); In re Stegar (D. C.) 113 Fed. 978 (opinion by Judge Jones); In re New Chattanooga Hardware Co. (D. C.) 190 Fed. 241 (opinion by Judge Sanford); In re Lachenmaier (C. C. A. 7) 203 Fed. 32, 121 C. C. A. 368.

[7] We may add that we think it clear that petitioners are not, by the filing of their claims before the referee, or by the election of a trustee, estopped from obtaining relief.

The order appealed from will be reversed so far as it sets aside the order of amendment in question, and so far as it denies petitioners an adjudication as to the act of bankruptcy in question under the involuntary petition; and the record is remanded to the district court with directions to take such action in the premises as may appear for the best interests of the estate, not inconsistent with this opinion.

(233 Fed. 950)

GRAND TRUNK RY, CO. OF CANADA v. KNAPP.

(Circuit Court of Appeals, Sixth Circuit. June 30, 1916.)

No. 2774.

1. COMMERCE 27-"INTERSTATE COMMERCE"-WHAT CONSTITUTES.

A carpenter, riding on a train which carried the equipment for repair of a bridge used by railroad company in interstate commerce, is, where the repairs were to be made by him, engaged in “interstate commerce.” [Ed. Note. For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. cmm 27.

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

2. MASTER AND SERVANT 346-INJURIES TO SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT.

Recovery by an injured servant under the Michigan Workmen's Compensation Act (Pub. Acts Ex. Sess. 1912, No. 10) does not depend on the master's negligence.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. 346.] 3. COMMERCE 8-EXCLUSIVE POWER-INJURIES TO SERVANT-WORKMEN'S COMPENSATION ACT-FEDERAL EMPLOYERS' LIABILITY ACT.

Plaintiff, a bridge carpenter, who was a member of a crew of a work train, was injured while on the way to repair a railroad bridge used both in intra and inter state commerce. The federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]) governs actions by employés of railroad companies injured through the negligence of the master while engaged in interstate commerce. The Michigan Workmen's Compensation Act, providing for compensation to employés injured regardless of the employer's negligence, conclusively imputes knowledge of the employer's election to come under the act to the employé, and part 6, § 4, declares that the provisions of the act shall apply to employers and workmen engaged in intrastate commerce, also to those engaged in interstate or foreign commerce for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States only to the extent that their mutual connection with intrastate work may be and shall be clearly separable and disinguishable from interstate or foreign commerce, but that any such employer and any of his workmen working only in the state may, subject to the approval of the Industrial Accident Board, accept and become bound by the provisions of the act with the same force and effect as provided for other employers and workmen. The railroad company, which was engaged in both intra and inter state commerce, filed an election to come within the act, but plaintiff did not accept the act. Held, that as the injuries received by plaintiff resulted from the railroad company's negligence, and as the federal Employers' Liability Act is exclusive in so far as it applies, Congress having jurisdiction over interstate commerce, recovery by plaintiff must be based on the federal act, and not on the Michigan Workmen's Compensation Act, for as to such injuries the latter act was inapplicable.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. 8.]

4. MASTER AND SERVANT 358-INJURIES TO SERVANT-WORKMEN'S COMPENSATION-ACCEPTANCE OF ACT.

In such case, the fact that the defendant railroad company paid defendant's hospital and doctor's bills during the first three weeks after the injury, as required by the Michigan Workmen's Compensation Act, does not, there having been no assent on the part of plaintiff that such payFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ment was in compliance with the act, establish plaintiff's acceptance of the act, excluding action under the federal Employers' Liability Act.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. 358.] 5. APPEAL AND ERROR 932(1)—PRESUMPTIONS-RECOVERY-DIMINUTION.

Where the master, who paid some of the hospital and medical expenses of an injured servant, made no request that the award of damages be diminished on that ground, the award will not be disturbed on appeal, for it will be presumed that it was so diminished.

[Ed. Note. Dec. Dig.

For other cases, see Appeal and Error, Cent. Dig. § 3782; 932(1).]

In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.

Action by Albert E. Knapp against the Grand Trunk Railway Company of Canada. There was a judgment for plaintiff, and defendant brings error. Affirmed.

H. R. Martin, of Detroit, Mich., for plaintiff in error.

S. A. Anderson, of St. Paul, Minn., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and EVANS, District Judge.

KNAPPEN, Circuit Judge. Defendant is a railway carrier engaged in interstate and intrastate commerce.. Plaintiff was employed by defendant as a bridge carpenter; while such employé, and while as such a member of a crew in charge of a work train, on which was a pile driver, service water tank, etc., on the way to repair defendant's railway bridge used by defendant for the passage thereover of trains both in interstate and intrastate commerce, plaintiff, without negligence on his part, received serious injuries through a collision (occasioned by defendant's negligence) between defendant's freight train and the train on which plaintiff was riding. Plaintiff recovered verdict and judgment in a suit for such negligent injuries, under the federal Employers' Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65, amended April 5, 1910 (36 Stat. 291, c. 143 [Comp. St. 1913, §§ 8657-8665]).

But two questions are presented: First, whether plaintiff was at the time of the accident employed in interstate commerce; and, second, whether the federal Employers' Liability Act supersedes, as to plaintiff's right of action, the Michigan Workmen's Compensation Act (Act No. 10, P. A. Mich. Ex. Sess. 1912).

[1] We have no doubt that plaintiff was at the time of the accident employed in interstate commerce, within the meaning of the federal Employers' Liability Act. The case is ruled by Pedersen v. D., L. & W. R. R, Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, unless distinguished by the fact that plaintiff in the instant case was riding upon a train which carried also the equipment for the repair, while in the Pedersen Case the employé was walking and carrying his own repair equipment. We cannot think this difference important. The case is not brought within Ill. Central R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 147 C.C.A.-40

Cas. 1914C, 163. See, also, N. Y. Central R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298, and P., C., C. & St. L. R. Co. v. Glinn (C. C. A. 6) 219 Fed. 148, 135 C. C. A. 46.

[2, 3] The Michigan act, with certain exceptions hereafter stated so far as important, applies to all persons, firms and corporations (including public service corporations) who elect to become subject to its provisions, such election to be effected by filing with the Industrial Accident Board a written statement of the acceptance of the act and the adoption of one of several methods provided for the payment of compensation. By failing to come under the act the employer is deprived of the defenses of contributory negligence, unless willful, negligence of fellow servants and assumption of the risk. Knowledge of the employer's election to come under the act is conclusively imputed to the employé, and the latter is conclusively presumed to have consented to come under the act unless he gives written notice to the contrary. Compensation Act, pt. 1, § 8, and pt. 3, § 4; Mackin v. Detroit-Timkin Axle Co. (Mich.) 153 N. W. 49.

Recovery does not depend upon, and is not affected by, the employer's negligence. Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 302, 148 N. W. 684. The statute is based on the theory that personal injury losses in industrial pursuits are properly chargeable to the business as a part of the cost of production. Compensation for injuries causing death takes the form of a payment of one-half the employé's weekly wages for a certain number of weeks, subject to a maximum and minimum, as respects both wages and aggregate recovery. Compensation for injuries not resulting in death is on the same general basis as for fatal injuries, the period for which compensation is paid being made to depend upon the nature and extent of the injury. The procedure to recover is by filing claim with the Industrial Accident Board and arbitration in case of disagreement between employer and employé, with a right of review by the Accident. Board of the arbitrator's findings, the action of the Board being final except that the Supreme Court may review questions of law involved. Final judgment in a court of record may be entered, as of course, upon a final award.

By section 4, part 6, of the act, its provisions are made to apply to employers and workmen engaged in intrastate commerce, but not to those engaged in interstate commerce, "for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States," except to the extent that "their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce.' There is also provision for express and voluntary acceptance of the act by "any such employer and any of his workmen working only in this state," if done with the approval of the Industrial Accident Board. The section is printed in full in the margin.1

1 "Sec. 4. The provisions of this act shall apply to employers and workmen engaged in intrastate commerce, and also to those engaged in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United

The defendant, previous to the accident, filed its election to come under the act. The plaintiff has never accepted it, unless his acceptance is conclusively presumed by his failure, previous to the accident, to give written notice of his nonassent.

Defendant being an interstate carrier by railroad and plaintiff having been employed in interstate commerce when his injuries occurred, the federal Employers' Liability Act unquestionably prescribes a remedy. The jurisdiction of Congress over interstate commerce, and thus over remedies against employers therein for injuries sustained by employés while engaged in such commerce, is paramount; and so far as Congress has occupied the field of such liability, its jurisdiction. is exclusive. Second Employers' Liability Cases, 233 U. S. 1, 55, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Mich. Cent. R. R. Co. v. Vreeland, 227 U. S. 59, 66, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; Seaboard Air Line R. R. Co. v. Horton, 233 U. S. 492, 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. Ás expressed by Mr. Justice Lurton in the Vreeland Case:

* * *

"By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employés while engaged in interstate commerce. This exertion of a power which is granted in express terms must supersede all legislation over the same subject by the states. It therefore follows that in respect of state legislation prescribing the liability of such carriers for injuries to their employés while engaged in interstate commerce this act is paramount and exclusive."

The defense that the employé was at the time of his injuries engaged in interstate transportation has been sustained as defeating recovery under state laws. Pecos, etc., Ry. Co. v. Rosenbloom, 240 U. S. 439, 36 Sup. Ct. 390, 60 L. Ed. 730; C., B. & Q. Ry. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941.

The general doctrine that the paramount jurisdiction of Congress when actually exercised, is exclusive, has been applied to a variety. of subjects, including, among others, contracts between carrier and shipper in interstate commerce, Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; hours of service of employés in such commerce, No. Pacific R. R. Co. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Erie R. R. Co. v. New York, 233 U. S. 671, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138; safety appliances on cars engaged in interstate commerce, Southern Ry. Co. v. R. R. Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 661; Texas & Pacific R. R. Co. v. Rigsby, 241 U. S. 33, 41, 36 Sup. Ct. 482, 60 L. Ed. 874; Spokane & Inland Empire R. R. Co. v.

States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his workmen working only in this state, may, subject to the approval of the industrial accident board, and so far as not forbidden by any act of Congress, voluntarily accept and become bound by the provisions of this act in like manner and with the same force and effect in all respects as is hereinbefore provided for other employers and their workmen."