An assessment levied on those conducting hazardous occupations to provide an indemnity fund for their employees is not within the constitutional provision requiring the taxes to be equal and uniform, since it is in the nature of a license tax. State ex rel. Davis-Smith Co. v. Clausen (Wash.) supra. Miscellaneous objections. The Washington workmen's compensation act is not unconstitutional as applied to interstate commerce by water, since Congress has in no way legislated in the premises. Stoll v. Pacific Coast S. S. Co. (1913) 295 Fed. 169. The New York statute is not violative of the Federal Constitution in attempting directly to regulate or impose a tax or burden on interstate or foreign commerce, since it merely undertakes to regulate the relation between employers and employees in the state. JENSEN V. SOUTHERN P. Co. As to the limitation of the applicability of the state compensation laws by Federal laws, see annotation, post, 461. The Illinois workmen's compensation act of 1911 does not violate the inhibiion of the Constitution against unreasonable search and seizure, since the act is elective, and not compulsory. Deibeikis v. Link-Belt Co. (1913) 261 Ill. 454, 104 N. E. 211, Ann. Cas. 1915A, 241, 5 N. C. C. A. 401. In Dragovich v. Iroquois Iron Co. (1915) 269 Ill. 478, 109 N. E. 999, it was held that the Illinois act was not unconstitutional as being passed before the amendments thereto were actually print ed. An employees' compensation act is not invalid because it gives the employers the right to determine whether or not minors rightfully employed by them shall have the benefit of the act, in the same way that they determine the matter for adult employees. Borgnis v. Falk Co. (Wis.) supra. The provision of pt. 3, § 15, that the association in which the employer was insured, and which paid the compensation to the dependents, may enforce, in the name of the employee, or its own name, for its own benefit, the liability of the third person whose negligence caused the injury, is not beyond the power of the legislature to make, since the association was equitably entitled to the recovery. Turnquist v. Hannon (1914) 219 (Mass.) 560, 107 N. E. 443. It has been held that the Texas act is not contrary to the public policy of that Tolbert state (Memphis Cotton Oil Co. v. (1914) Tex. Civ. App. -, 171 S. W. 309, 7 N. C. C. A. 547); and that the act of New Jersey, being elective, is not repugnant to the public policy of New York (Wasilewski v. Warner Sugar Refinery Co. (1914) 87 Misc. 156, 149 N. Y. Supp. 1035). Such parts of the Kentucky act as take from the personal representative or estate of the deceased employee, who left no dependent surviving him, any part of the compensation due such representative or his estate, and direct its payment into the workmen's compensation fund for the benefit of other people, is a violation of § 241 of the state Constitution. KENTUCKY STATE JOURNAL Co. v. WORKMEN'S COMPENSATION BD. In the same case it was held that it was within the power and right of an employee to waive the constitutional provision that the general assembly should have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and consequently the provision of the compensation act that the employer and employee might contract to accept the provisions of the act, and waive any cause of action which the employee might have had against his employer, was not unconstitutional. W. M. G. RHODE ISLAND SUPREME COURT., in one state to recover damages for injuries MICHAEL PENDAR V. received in another state where the contract of employment was made, if, at the time he entered into his employment, he failed to comply with the requirements of the local H. & B. AMERICAN MACHINE COM- statutes that he notify the employer, who PANY. carried an employers' liability insurance policy, that he intended to rely on his com substance, that on the 20th day of July, 1912, at said Pawtucket, the plaintiff, while then and there employed by the defendant, and while,then and there in the performance of his duties as such employee, in loading or unloading "a certain appliance, machine, or buggy, so called," and while in the exercise of due care, was injured in consequence of the negligence of the defendant corporation. The declaration contains two counts. The first alleges the buggy to be unsafe; the second, that the floor about the buggy was unsafe. To the declaration the defendant pleaded the general issue, and also a special plea, in which it says that the plaintiff ought not to recover because "the place where said plaintiff was employed as a serv The facts are stated in the opinion. Mr. Thomas L. Carty for plaintiff. Messrs. Boss & Barnefield, for defendant by said defendant, and the place where ant: It is the law of the place where the injury was sustained, and not the law of the place where the action may be brought, which alone determines whether there is or is not any right of action. said plaintiff entered upon and continued his said employment as said servant of said defendant, and the place where the plaintiff's said injuries, as alleged in the two counts of his said declaration, were sustained, was and is in the town of Attleboro, in the commonwealth of Massachusetts, and not within the limits of the state of Rhode Island; that under the law of said commonwealth of Massachusetts, in force at the time of the making of said plaintiff's said contract of employment, and also in force at the time when said plaintiff's said injuries were so sustained, if an employee of a 'subscriber' or of a holder of an insurance policy in a liability insurance company authorized to do business in said Massachusetts, insuring the employer's liability to pay compensation for liabilities as provided in part 2 of chapter 751 of the Acts of 1911 of the Massachusetts legislature, shall not have given his employer at the time of his contract of hire notice in writing that he claimed the right of action at common law to recover damages for personal injuries, such employee shall be held to have waived his right of action at common law; that at the O'Reilly v. New York & N. E. R. Co. 16 R. I. 388, 5 L.R.A. 364, 6 L.R.A. 719, 17 Atl. 171, 906, 19 Atl. 244; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 18 L.R.A. 433, 38 Am. St. Rep. 163, 11 So. 803; Baltimore & O. S. W. R. Co. v. Reed, 158 Ind. 25, 56 L.R.A. 468, 92 Am. St. Rep. 293, 62 N. E. 488; Louisville & N. R. Co. v. Whitlow, 105 Ky. 1, 41 L.R.A. 614, 43 S. W. 711; Kimball v. Kimball, 75 N. H. 291, 73 Atl. 408; Alexander v. Pennsylvania Co. 48 Ohio St. 623, 30 N. E. 69; Beacham v. Portsmouth Bridge, 68 N. H. 382, 73 Am. St. Rep. 607, 40 Atl. 1066; Chicago, R. I. & P. R. Co. v. Thompson, 100 Tex. 185, 7 L.R.A. (N.S.) 191, 123 Am. St. Rep. 798, 97 S. W. 459; Boston & M. R. Co. v. Hurd, 56 L.R.A. 193, 47 C. C. A. 615, 108 Fed. 116; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 44 L.R.A. 410, 52 N. E. 951, 5 Am. Neg. Rep. 549; East Tennessee, V. & G. R. Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603; Albanese v. Stew-time when said plaintiff so made his said art, 78 Misc. 581, 138 N. Y. Supp. 942. The Massachusetts statute bars and extinguishes the common-law right of action which otherwise the plaintiff might have had. contract of hire with said defendant, said defendant was, and continued to be up to the time when and after said plaintiff sustained his said injuries, a ‘subscriber' and a holder of an insurance policy in a lia Opinion of Justices, 209 Mass. 607, 96 bility insurance company so authorized, inN. E. 308, 1 N. C. C. A. 557. suring said defendant's liability to pay said compensation hereinbefore referred to; that Baker, J., delivered the opinion of the before the time of said plaintiff's said con court: This is an action at common law brought by Michael Pendar, of Central Falls, in this state, against the H. & B. American Machine Company, described in the declaration as "a corporation duly created and having a usual place of business in the city of Pawtucket, in said state." The declaration alleges, in tract of hire, the said defendant posted printed notice that it had provided for the payment of said compensation to injured employees at one of the principal entrances to said defendant's factory, where said plaintiff was later employed as aforesaid, and in each room thereof where labor was employed, which said notice said defendant so maintained from the time of posting thereof ed or exists, then it exists nowhere, and can up to and after the time when said plain-be prosecuted in no jurisdiction. This doctiff's said injuries were sustained; and that trine has been recognized and accepted by said plaintiff at the time of his said con- this court in the case of O'Reilly v. New tract of hire, nor at any time thereafter, York & N. E. R. Co. 16 R. I. 388, 5 L.R.A. did not give to said defendant notice in 364, 6 L.R.A. 719, 17 Atl. 171, 906, 19 Atl. writing that he claimed his right of action | 244. That was an action brought for an inat common law to recover damages for per-jury received in Massachusetts resulting in sonal injuries." death through defendant's negligence. It The plaintiff demurred to said special plea, and stated the grounds of his demurrer as follows: "(1) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over parties to said action. (2) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over the subject-matter of said action. (3) That so far as appears in or by said plea the law of the commonwealth of Massachusetts therein referred to does not extinguish the plain-action has become extinct where it accrued, tiff's said right of action. (4) That so far as appears in or by said plea the law of the commonwealth of Massachusetts therein referred to does not bar the plaintiff from maintaining his said action." And in the event that said demurrer should be overruled, the plaintiff filed his replication to said plea, setting up "that the place where the said plaintiff was employed as a servant by said defendant, and the place where said plaintiff entered upon and continued his said employment as said servant of said defendant, and the place where the said injuries as alleged in the two counts of his said declaration were sustained, was and is within the limits of the state of Rhode Island, and not in the commonwealth of Massachusetts." The plaintiff's demurrer was overruled, and his exception noted. Hearing was had on the replication to the special plea, jury trial being waived, and there was decision for defendant, and plaintiff excepted thereto. The case is now before this court on plaintiff's bill of exceptions, which contains only the exception to the decision overruling plaintiff's said demurrer. The important question raised by the de murrer is whether the Massachusetts law it cannot, as a mere matter of comity, survive elsewhere." See also Connor v. New York, N. H. & H. R. Co. 28 R. I. 560, 562, 18 L.R.A. (N.S.) 1252, 68 Atl. 481, 13 Ann. Cas. 1033. This has been generally accepted as the law in such cases. In Burns v. Grand Rapids & I. R. Co. 113 Ind. 169, at page 176, 15 N. E. 230, the court says: "All the cases agree that, whatever the law of the forum may be, the plaintiff's case must stand, if at all, so far as his right of action is concerned, upon the law of the place where the injury occurred. Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction." See also Baltimore & O. S. W. R. Co. v. Reed, 158 Ind. 25, 56 L.R.A. 468, 92 Am. St. Rep. 293, 62 N. E. 488; Alabama G. S. R. Co. v. Carroll, 97 Ala. 126, 18 L.R.A. 433, 38 Am. St. Rep. 163, 11 So. 803; Turner v. St. Clair Tunnel Co. 111 Mich. 578, 36 L.R.A. 134, 66 Am. St. Rep. 397, 70 N. W. 146, 1 Am. Neg. Rep. 270; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 44 L.R.A. 410, 52 N. E. 951, 5 Am. Neg. Rep. 549; Davis v. New York & N. E. R. Co. 143 Mass. 301, 58 Am. Rep. 138, 9 N. E. 815. pleaded in this case, as applied to the facts set out in the special plea, extinguishes the The situation is the same, although the plaintiff's right to maintain a common-law act or omission to act might have been acaction for the injuries received by him, as tionable if occurring in the jurisdiction of alleged in his declaration, so that he is the forum. Chicago, R. I. & P. R. Co. v. barred from maintainng the present action. Thompson, 100 Tex. 185, 7 L.R.A. (N.S.) It is the law of this state, and generally, 191, 123 Am. St. Rep. 798, 97 S. W. 459; that the law of the place where the injury Boston & M. R. Co. v. Hurd, 56 L.R.A. 196, was received determines whether a right of 47 C. C. A. 615, 108 Fed. 116, 125. The action exists. If under the lex loci there be exception to this is that under the principles a right of action, comity permits it to be of comity an action will not be permitted to prosecuted in another jurisdiction; but if be prosecuted, if it would violate the pubunder the lex loci no right of action is creat-lic policy of the forum. ever, the employers' liability act of New Jer- It is obvious, therefore, that the right As workmen's compensation acts are of of the plaintiff to maintain this action in comparatively recent enactment, it is not to Rhode Island is determined by the fact as he expected that many court decisions can to whether or not he has such right in Mas-be found on the point here considered. Howsachusetts. The demurrer admits the law of Massachusetts to be correctly pleaded, and also admits, for the purpose of the hearing, the alleged statement of facts in the plea to be true. Upon such admissions it is evident that the plaintiff has waived in Massachusetts his right to bring and maintain a common-law action to recover for the injuries alleged in the declaration, by failing at the time of his said hiring to give notice in writing to the defendant that he claimed his right to bring such action. In other words, by such failure to give notice he made his choice of remedy, so that his right to maintain a common-law action for such injuries was relinquished and given up, and no longer exists. The terms of the law are explicit, and there is no ground to question that such is its plain purpose and meaning. If the act in question be constitutional, the plaintiff had, when the present action was brought, no right to maintain such action in Massachusetts, and therefore had no right of action in Rhode Island. But the provision of said act respecting the waiving of the right of action at common law in Massachusetts has been held to be constitutional by the supreme judicial court of that state in Opinion of Justices, 209 Mass. 607, 610, 611, 96 N. E. 308, 315, 316, 1 N. C. C. A. 557. The court says: "We see nothing unconstitutional in providing, as is done in part 1, § 5, that the employee shall be deemed to have waived his right of action at common law if he shall not have given notice to his employer as therein provided. The effect of the provisions referred to is to leave it at the employee's option whether he will or will not waive his right of action at common law. . By subscribing to the association an employer voluntarily agrees to be bound by the provisions of the act. The same is true of an employee who does not choose to stand upon his commonlaw rights. An employer who does not subscribe to the association will no longer have the right, in an action by his employee against him at common law, to set up the defense of contributory negligence or assumption of the risk, or to show that the injury was caused by the negligence of a fellow servant. In the case of an employee who does not accept the compensation provided for by the act, and whose employer has become a subscriber to the association, an action no longer can be maintained for death under the employers' liability act. But these considerations do not constitute legal compulsion or a deprivation of fundamental rights." plaintiff is not entitled to bring and prosecute in this state the common-law action under consideration, as by his own act his right thereto has been extinguished in the state where the injury was received. His exception to the decision of the Superior Court overruling his demurrer is overruled, and the case is remitted to the Superior Court for the entry of judgment on the decision. actions on foreign difference in systems. The maintenance of a common-law action for injury to an employee in another state is not prevented by the fact that a local statute has abolished civil actions for such Ellis, J., delivered the opinion of the court: The plaintiff brought this action in the superior court of Spokane county to recover for personal injuries suffered by him, which injuries he alleges were caused by the negligence of the defendants while he was in their employ as a laborer in their mine in the state of Idaho. The amended complaint sets up an ordinary cause of action as at common law against a master for negligent injury to his servant. This is followed by the allegation: "That there is not any stat injuries, and provided a system of indus-ute or law in the state of Idaho providing trial insurance to provide for them; at least where actions may still be brought for injuries occurring within the state which are not within the provisions of the statute, and also where the employer is in default in payments necessary to entitle him to the benefit of the statute. For other cases, see Conflict of Laws, I. e, 1, in Dig. 1-52 N. S. A (May 6, 1914.) for compulsory or industrial insurance, and the plaintiff does not receive, under the laws of the state of Idaho, any benefits, insurance, or compensation on account of said injuries as provided for employees under the laws of the state of Washington." There is no allegation as to what is the law of the state of Idaho relating to the maintenance of such actions, save the inference arising from the allegation quoted that there is no statute covering the case. A demurrer was interposed upon the grounds that the court had no jurisdiction of the subject-matter, and that the complaint did not state facts PPEAL by plaintiff from the judgment of the Superior Court for Spokane County in defendants' favor in an action brought to recover damages for personal injuries al-sufficient to constitute a cause of action. leged to have been caused by their negligence. Reversed. The facts are stated in the opinion. Messrs. Robertson & Miller and Corkery & Corkery for appellant. Messrs. John H. Wourms and Graves, Kizer, & Graves, for respondents: A cause of action arising in one state will not be enforced in the courts of another state when there is substantial dissimilarity between the statutes of the two states governing the subject-matter. St. Louis, I. M. & S. R. Co. v. McCormick, 71 Tex. 660, 1 L.R.A. 804, 9 S. W. 540; Ash v. Baltimore & O. R. Co. 72 Md. 144, 20 Am. St. Rep. 461, 19 Atl. 643; Dale v. Atchison, T. & S. F. R. Co. 57 Kan. 601, 47 Pac. 521, 1 Am. Neg. Rep. 46; Belt v. Gulf, C. & S. F. R. Co. 4 Tex. Civ. App. 231, 22 S. W. 1062; Whitford v. Panama R. Co. 23 N. Y. 465; Needham v. Grand Trunk R. Co. 38 Vt. 309; Slater v. Mexican Nat. R. Co. 194 U. S. 120, 48 L. ed. 900, 24 Sup. Ct. Rep. 581; Keep v. National Tube Co. 154 Fed. 121; Zeikus v. Florida East Coast R. Co. 144 App. Div. 91, 128 N. Y. Supp. 933; Gallagher v. Florida East Coast R. Co. 196 Fed. 1000; St. Bernard v. Shane, 201 Fed. 453: Walsh v. New York & N. E. R. Co. 160 Mass. 571, 39 Am. St. Rep. 514, 36 N. E. 584. Note. As to the extraterritorial jurisdiction of workmen's compensation statutes, and conflict of laws with reference thereto, see annotation, post, 443. The demurrer was sustained, and the action dismissed upon the sole ground, as expressed in the court's order, that "the court has no jurisdiction of the subject-matter of the action." The plaintiff appealed. There was apparently no opportunity given for further amendment of the complaint so as to set out more specifically the law of the state of Idaho, and it is manifest that, if the decision of the trial court is correct, an amendment in that particular would have been unavailing in any event. Moreover, it seems to be conceded in the respondents' brief that, for the purposes of this review, it will be assumed that the common law, as applied to actions of this character, prevails in the state of Idaho. Any other course would be obviously unfair, since if the court had overruled the demurrer on the jurisdictional ground, but sustained it on the ground of insufficiency of facts, the appellant doubtless would have secured leave to amend. The respondents contend, and the trial court apparently held, that it is contrary to the public policy of this state to permit the maintenance of an action of this character, and that this policy will not be controlled by the rule of comity so as to permit our courts to entertain such an action upon a cause arising outside of this state. It is asserted that a policy hostile to such an action as this is specifically declared in the 1st section of the industrial insurance act (Laws of 1911, p. 345). That section reads as follows: "The common-law system |