[§ 31] D. State and Federal Laws-1. Interstate Commerce Regulations. It is well settled that in so far as congress has exercised the power granted to it to regulate interstate commerce its action is exclusive and that any state compensation act in conflict must yield.66 It is also conceded that the states under the police power reserved to them have power to legislate in a manner affecting the instrumentalities of interstate commerce in so far as congress has not already occupied the same field.67 In the application of these principles, however, the state courts have come to diametrically opposite conclusions, one line of authorities hold ing that, notwithstanding the fact that the state own state, there is now such an den of taxation. That fact, however, expressly excepts cases where the 66. U. S.-In re Second Employers' Liability Cases, 223 U. S. 1, 32 SCt 169, 56 L. ed. 327, 38 LRANS 44; Grank Trunk R. Co. v. Knapp, 233 Fed. 950. Cal.-Smith V. Industrial Acc. Minn.-Lindstrom V. Mutual SS. N. J.-Grybowski v. Erie R. Co., 88 N. J. L. 1, 95 A 764. N. Y.-Winfield v. New York Cent.. etc., R. Co., 216 N. Y. 284, 110 NE 614, AnnCas1916A 817 [aff 168 App. Div. 351, 153 NYS 499]. "The argument of counsel for society,' and is therefore within the [b] Antagonism of policies."The hostility of our law is not directed against the remedial purpose of the common law. It extends that purpose to cases not reached by the common law action. The rule of the common law is contemned not because it furnishes a remedy, but because the remedy is deemed inade-ciety and not as an instrument of quate. This is far from a declaration of policy which would refuse that remedy where that remedy is the only alternative. There is nothing in the employers' liability act so hostile to the common law remedy as to deny any remedy where the circumstances will permit the application of no remedy save that of the common law. The assertion that our law declares a policy 'utterly antagonistic and opposed in its every notion and theory to the common law' is more rhetorical than exact. It is true only in a qualified sense. Our law is not opposed to the common law theory of recompense for injury. It is only opposed to the common law assumption that a suit at law furnished adequate recompense. Such a policy is certainly not trary to the giving of any remedy merely because the only remedy possible is deemed inadequate. Our statute was never intended to declare that, because workmen injured in this state receive compensation without suit, it is against the public policy of this state that workmen injured outside of the state, and where the common law prevails, should receive any compensation.' Reynolds v. Day, 79 Wash. 499, 505, 140 P 681, LRA1916A 432. con [c] Inconvenience and expense."Unquestionably, before the industrial insurance act was passed, our courts would have entertained this action under the rule of comity so defined. Can it be said, with any show of reason, that, because our courts have been relieved of much of this character of litigation when arising between our own citizens and on causes originating in Our "It has been held by the United States Supreme Court that the Federal Employers' Liability act of 1908 superseded all state laws upon the subject of the liability of carriers by railroad engaged in interstate transportation, to their workmen injured while employed in such commerce. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 34 SCt 635, 58 L. ed. 1062, LRA1915C 1, AnnCas 1915B 475; In re Second Employers' Liability Cases, 233 U. S. 1, 32 SCt 169, 56 L. ed. 327, 38 LRANS 44. The necessary corollary of this judicial declaration is that no state, by subsequent legislation, can impair or curtail in any degree the rights conferred upon the employee, or his personal representative, or the liabilities imposed upon the carrier, by that statute." Grybowski v. Erie R. Co., 88 N. J. L. 1, 5, 95 A 764. [a] Election.-A provision in a state compensation act, providing that the filing of a claim under the act shall constitute a release of demands at law, will not prevent an action by the employee under the Federal Employers' Liability Act, unless the proceedings have been carried to the point where they amount to a settlement. Waters V. Guile, 234 Fed. 532. [b] Estoppel.-(1) The fact that defendants provided medical and hospital services and medicine for an 67. Regulation and control of inter- Cal.-Smith V. Industrial Acc. Minn.- Lindstrom v. Mutual SS. Co., 132 Minn. 328, 156 NW 669, LRA 1916D 935. N. Y.-Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 110 NE 614, AnnCas1916A 817 [aff 168 App. Div. 351, 153 NYS 499]; Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276. "The statute does not purport directly to regulate or impose a burden upon commerce, but merely undertakes to regulate the relations between employers and employees in this state. Such regulation may, and no doubt does, indirectly affect commerce, but to the extent that it may affect interstate or foreign commerce it is plainly within the jurisdiction of the state, until congress by entering the field excludes state action." Jensen V. Southern Pac. Co., 215 N. Y. 514, 521, 109 NE 600, LRA1916A 403, AnnCas1916B 276. 68. Act April 22, 1908 (35 U. S. St. at L. 65). 69. Smith V. Industrial Acc. Commn., 26 Cal. A. 560, 147 P 600; Chicago, etc., R. Co. v. State Industrial Bd., (III.) 113 NE 80; Staley v. Illinois Cent. R. Co., 268 Ill. 356, 374, 109 NE 342, LRA1916A 450 and note. "Counsel on the one hand argue that under the fair construction of the Federal Employers' Liability act as construed by these decisions the act covers the field of liability of common carriers by railroad for all injuries occurring in inter-State commerce, whether or not there has been negligence on the part of the employer, while counsel on the other side contend that the act covers only liability of common carriers in interState commerce when there has been such negligence. It is clear that there can be no 'recovery' under the Federal Employers' Liability act, properly construed, in the absence of negligence on the part of the employer, as that term is used in the an employee who at the time of his injury was engaged in an employment connected with interstate commerce will be denied relief under the compensation aet.70 Other decisions hold that it was the intent of congress to legislate only on the question of liability arising from negligence, and that the states were left free to legislate as to the question of compensation in the absence of negligence, and for that reason, where the injured employee seeks compensation, he may take advantage of the state compensation act in so far as the injury sustained by him was not due to negligence."1 Inasmuch as the federal legislation with regard to employees engaged in interstate commerce has not statute and in the decisions constru- | ticular subject,' 'subject matter,' the employe as in tort, based upon ing the same. But if the question 'field' or 'chosen field' taken posses- common law negligence, or the failof negligence alone determines the sion of by the Federal Employers' ure to comply with some statutory applicability of the Federal law, Liability act was the employer's lia-provision for the safety of the emthen, before it can be held that such bility for injuries to employees in law is applicable, there must be a inter-State transportation by rail, final adjudication as to whether the and the real question, as clearly injury resulted from negligence. Ob- stated in distinct terms in several viously, Congress legislated on more of the cases that we have quoted than the subject of negligence. from in deciding whether the FedIt also legislated on the subject of eral statute is applicable, is whether limitation when an action could be the injury for which the suit was begun. (St. Louis, etc., R. Co. v. Hes- brought was sustained while the terly, 228 U. S. 702, 33 SCt 703, 57 company and the injured employee L. ed. 1031.) It also legislated as to were engaged in inter-State comwhat persons could recover under merce. The Federal Employers' Liathe Federal act and when an action bility act has taken possession of would survive the death of the in- -has occupied-that field for the jured person; (Taylor v. Taylor, 232 purpose of calling into play therein U. S. 363, 34 SCt 350, 58 L. ed. 638; this exclusive power of the Federal Michigan Cent. R. Co. v. Vreeland, government. Necessarily, all com227 U. S. 59, 33 SCt 192, 57 L. ed. mon or statute law of this State on 417, AnnCas1914C 176;) also on the that subject has been superseded. subject of assumed risk and con- The field of liability as to employees tributory negligence. We think it is injured while engaged in inter-State clear, also, that section 5 of said commerce on railroads is occupied Employers' Liability act touches up- exclusively by the Federal Employon and in a measure covers cases ers' Liability act-and that, too, rewhere there is no negligence on the gardless of the negligence or lack of part of either employee or employer, negligence of either party to the litifor it is well known that contracts gation." Staley v. Illinois Cent. R. for insurance, relief benefit or in- Co., 268 Ill. 356, 376, 109 NE 342, demnity cover not only injuries LRA1916A 450. caused by negligence, but all injuries caused in any way while engaged in the employment of the railroad. If the argument of counsel this question were to be sustained it would usually be difficult, if not impracticable, to enforce liability for injuries caused while both parties were engaged in inter-State commerce on railroads. This fact lends strong support, in our judgment, to the argument that it was the intention of Congress to assume control of on the entire field of liability of railroads for injuries to employees occurring in inter-State commerce. The reasoning that has repeatedly controlled the action of the courts, that is, that the power of Congress to regulate inter-State commerce is not limited by the fact that intraState transactions may have become so interwoven that the effective government of the former incidentally controls the latter, (Simpson Shepard, 230 U. S. 352, 33 SCt 729, 57 L. ed. 1511, 48 LRANS 1151, and cases cited,) would also apply on this question. The questions of comparative negligence of employee and employer, assumed risk, contributory negligence, liability under indemnity or V. insurance contracts. under the wording of the act are so involved with that of negligence that it would seem impossible to separate the cases under the Federal Employers' Liability act solely on the line of the negligence of the employer." Staley v. Illinois Cent. R. Co., supra. [a] Limitation of federal act by title. "Counsel for plaintiff in error argue that the title of the Federal Employers' Liability act, especially the phrase 'certain cases,' shows that Congress did not intend to cover all cases of injuries occurring on railroads while engaged in interState commerce. With this we do not agree. We think the phrase 'in certain cases' was inserted in this title to obviate some of the defects suggested in the title of the act held unconstitutional in Howard V. Illinois Cent. R. Co., 207 U. S. 463, 28 SCt 141, 52 L. ed. 297, and that the 'certain cases' was meant to limit it to those cases where the liability arose in inter-State commerce. The wording of the statute and the reasoning in these decisions lead inevitably to the conclusion that 'the par 70. Smith V. Industrial Acc. [a] Hardship of construction.— causes ment may well be addressed to the 71. Winfield v. Erie R. Co., 88 N. [a] Illustration.-The federal act does not prevent recovery of compensation, under the state law, by a railroad employee accidentally injured by being struck in the eye by a stone while he was tamping ties in the employment of a railroad company then engaged in interstate commerce. Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 110 NE 614, AnnCas1916A 817. [b] State and federal acts distinguished. (1) "The federal and state act are not in pari materia. The one is an act creating a liability to ploye; the other, so far as its section 2 is concerned, is a compensation act purely contractual in character, and requiring compensation for injury or death to be made as an incident. of the mere relation and quite irrespective of any question of negligence on the part of the employer." Hammill v. Pennsylvania R. Co., 87 N. J. L. 388, 390, 94 A 313. (2) "In SO far as employers and employees working in this state are engaged in interstate commerce and injuries result to the employees which are not the result of negligence and are not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or another or result from his intoxication while on duty, Congress not having legislated upon the subject, the state statute is operative. The insurance fund created by the state statute is not for the benefit of those who are within the Federal statute. Nor does the state statute assume to release employers who contribute to the insurance fund from liability imposed by the Federal statute. In all such cases the state statute imposes no liability and does not relieve from liability for such accidents. All accidents of that character are governed by the Federal Employers' Liability Act. In regard to such accidents it is not within the jurisdiction of the state either to create a liability or to relieve from it. The contribution which the employer makes to the insurance fund under the state statute relieves him of liability to his employees in cases which are not within the Federal statute. But accidents, resulting from negligence to those engaged in interstate commerce, which are within the Federal statute, are now exclusively within the sphere of Federal jurisdiction and as to them the state cannot create or take away liability." Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 295, 110 NE 614, AnnCas 1916A 817 and note. [c] Negligence must affirmatively appear.-"An examination of section 1 of the federal statute shows that the liability of the carrier imposed by that act is limited to cases where the death of the employe results in whole or in part from the negligence of an officer, agent or employe of such carrier, or occurs by reason of some defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. When death results to being present as a producing cause, an employe without such negligence either wholly or partly, the statute imposes no liability upon the carrier. It must follow, therefore, we think, that in order to oust the Court of Common Pleas of jurisdiction in a proceeding brought under our Workmen's Compensation act, it must affirmatively appear either in the pleadings or the proofs that a right of action is given to the widow or personal representatives of the deceased employe by the federal statute; in other words, that his death resulted in whole or in part from negligence chargeable to the defendant company; for such negligence will not be presumed." Winfield v. Erie R. Co., 88 N. J. L. 619, 621, 96 A 394. [d] Double recovery.-"If the claim of the employer that the injury was the result of his negli been extended to the employees of carriers by water,72 it has been held in all of the cases in which the question has arisen that in the case of such employees the state compensation acts are applicable.73 The provision of the Federal Employers' Liability Act allowing the carrier to set off any sum contributed to any insurance, relief, benefit, or indemnity that has been paid to the injured employee, or to the person entitled thereto, on account of the injury does not include the compensation to be paid under a workmen's compensation act." Exceptions in statutes. Some of the statutes, in order to avoid conflict with federal laws, expressly provide that they shall not apply to cases where a rule of liability or method of compensation has been or may be established by congress;' or to the liability of employers to employees engaged in inter If gence should be upheld, and the case should be within the Federal statute, the employer would not be subjected to a double recovery, because in this event there could be no recovery under the state statute. the injury was not the result of negligence an award under the state statute could be made, but in such cases there could be no recovery under the Federal Employers' Liability Act and hence the employer could not be subjected to a double recovery." Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 296, 110 NE 614, AnnCas1916A 817. 72. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA 1916A 436; Lindstrom v. Mutual SS. Co., 132 Minn. 328, 156 NW 669, LRA 1916D 935. 73. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA 1916A 436; Lindstrom v. Mutual SS. Co., 132 Minn. 328, 156 NW 669, LRA 1916D 935; Hammill v. Pennsylvania R. Co., 87 N. J. L. 388, 94 A 313; Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276. the [a] Illustrations.-(1) Where defendant was a Minnesota corporation operating a steamship on the Great Lakes between Duluth, its home port, and ports outside of Minnesota, and the employer was a fuel company owning a dock at Duluth, and plaintiff employee while engaged in unloading a cargo of coal from steamship on to the fuel company's dock and working in the hold of the vessel was injured through the negligence of defendant, it was held that a demurrer to his common-law action for damages was properly sustained. Lindstrom v. Mutual SS. Co., 132 Minn. 328, 156 NW 669, LRA 1916D 935. (2) In New York the facts and reasons were stated as follows: "The claimant's husband was killed on August 15th, 1914, while employed in unloading the steamship ΕΙ Oriente which was berthed alongside a pier in the Hudson river. When the accident OCcurred he was moving an electric truck upon a gangway connecting the vessel with the pier. The appellant, a corporation of the state of Kentucky, is a common carrier by railroad. It also owned and operated said steamship, which plied between New York and Galveston, Texas. does not appear that the steamship was in any way operated in connection with a line of railroad, and in its report of the accident the appellant stated its business to be 'transportation by steamships engaged solely in interstate commerce.' It is said that the appellant is a carrier by railroad, and that, therefore, the Federal Employers' Liability Act of April 22, 1908 (35 Stat. L. 65), prescribes the rule governing the employment in which the deceased was engaged. As far as this case is concerned the appellant is a carrier by water. Its business is transporta It 76 75 state and foreign commerce for death or injury, in case the laws of the United States provide for compensation or for liability for such death or injury; or to employees of carriers which shall be construed to be excluded from the act by the laws of the United States relating to liability to their employees for personal injuries while engaged in interstate commerce, where such laws are held to be exclusive of all state regulations providing compensation for accidental injuries or death suffered in the course of employment.78 When employee engaged in interstate commerce. In determining whether an employee was engaged in interstate commerce at the time of his injury, the same tests are applied in cases arising under the compensation acts as in other cases.79 When a carrier is both an interstate and intra-state caror may be established by the congress of the United States' is meaningless. The legislature evidently intended to regulate, as far as it had the power, all employments within the state of the kinds enumerated." Jensen v. Southern Pac. Co., 215 N. Y. 514, 521, 109 NE 600, LRA1916A 403, AnnCas1916B 276. tion by steamships, which, as far as appears, may not even indirectly be related to transportation by railroad, certainly not by any particular line of railroad. It is significant that the earlier Federal statute of June 11, 1906, (34 Stat. L. 232), applied to 'every common carrier' engaged in interstate or foreign commerce, whilst the present act applies only to carriers by railroad. There is nothing in the act indicative of a purpose to apply it to carriage by water, if it happen to be conducted by a railroad corporation, and not otherwise to apply one rule of liability to transportation by a steamship line, if owned and operated by a railroad corporation, and a different rule to precisely similar transportation not thus controlled." Jensen v. Southern Pac. Co., 215 N. Y. 514, 518, 522, 109 NE 600, LRA1916A 403, AnnCas1916B 276. (3) The Federal Employers' Liability Act of April 22, 1908 (35 U. S. St. at L. 65), refers only to interstate carriers by railroad and does not apply to a railroad company whose sole relation to the employee is as lessee of a canal on which said employee works for wages paid by the railroad company. Hammill v. Pennsylvania R. Co., 87 N. J. L. 388, 94 A 313. 74. Act April 22, 1908 (35 U. S. St. at L. 66 c 149 § 5). 75. Staley v. Illinois Cent. R. Co., 268 Ill. 356, 382, 109 NE 342, LRA 1916A 450. 77. Kennerson v. Thames Towboat Co., 89 Conn. 367, 374, 94 A 372, LRA1916A 436 (where the court said: "Presumably § 40 and similar provisions in other Compensation Acts have reference to the Federal Employers' Liability Act. Where the injury arises from a cause not covered by the Federal Act, this section does not apply. To come within the Federal Act there must be interstate traffic, interstate employment, and negligence"). 78. Staley v. Illinois Cent. R. Co., 268 111. 356, 109 NE 342, LRA1916A 450. 79. Smith V. Industrial Acc. Commn., 26 Cal. A. 560, 147 P 600; Staley v. Illinois Cent. R. Co., 268 111. 356, 109 NE 342, LRA1916A 450; Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620; Fairchild v. Pennsylvania R. Co., 155 NYS 751, 752; Sullivan v. Chicago, etc., R. Co., 163 Wis. 583, 158 NW 321. "The actual work being performed at the time of the injury determines its character, and is the real test whether it is interstate or intrastate work." Fairchild v. Pennsylvania R. Co., supra. [a] Illustrations.—(1) A machinist in railroad switch or terminal yards, who was sent by his superior officer to repair the whistle rod on an engine engaged in switching and handling interstate commerce, and who, while on his way, stepped in front of another engine engaged in en "Having in mind the history of the legislation, both Federal and State, on the questions here under consideration, we can reach no other conclusion, under the wording of said section 5, than that the Illinois Workmen's Compensation act was not intended to be included by Congress within any of the exceptions stated in said section. What has al-switching all classes of freight, interready been said heretofore in this opinion with reference to the intent of the Illinois legislature in passing the Workmen's Compensation act practically demonstrates that that body did not intend the remedy thereunder to be in any sense cumulative to the remedy provided for in the Federal Employers' Liability act. Congress could include workmen's compensation acts within the exception provided for in said section 5 but has not yet seen fit so to do." Staley v. Illinois Cent. R. Co., supra. 76. See statutory provisions; and Winfield v. New York Cent., etc., R. Co., 216 N. Y. 284, 110 NE 614, Ann Cas1916A 817. [a] Construction of provision."Literally construed, section 114 makes the statute apply only to intrastate work, either done by itself or in connection with, but clearly separable and distinguishable from, interstate or foreign commerce. But, though the section is awkwardly phrased, it is manifest that a broader application was intended, else the clause for whom a rule of liability or method of compensation has been state as well as intra-state, was gaged in inter-State commerce" at the time of the accident, within the Federal Employers' Liability Act of April 22, 1908 (35 U. S. St. at L. 65). Staley v. Illinois Cent. R. Co., 268 Ill. 356, 109 NE 342, LRA1916A 450. (2) A railroad special watchman who removed trespassers from an interstate train and was injured just after he alighted from the train to drive the trespassers out of the railroad yard was still employed in interstate commerce at the time he received his injury. Smith v. Industrial Acc. Commn., 26 Cal. A. 560, 147 P 600. (3) "The work being performed by the deceased when he was injured was not interstate, for he was uncoupling empty cars on a local railroad, operating always exclusively within this state-a railroad having no interstate characteristic whatever, except when actually engaged in carrying interstate passengers, baggage, or freight." Fairchild v. Pennsylvania R. Co., 155 NYS 751, 752. (4) In view of workmen's compensation law (Consol. L. c 67) § 21. providing that, in any proceeding for 87 proceeding in a state court the compensation act will be applied.86 There is, however, authority to the effect that, by the statute limiting the liability of the owner of the vessel for damages or for injury, the field has been occupied to the exclusion of the power of the states.88 And further, that a statute which provides that the method of compensation therein established shall be to the exclusion of every other remedy, and that all civil actions and civil causes of action for personal injuries and all jurisdiction of the courts of the state are abolished, cannot be extended to employers subject to actions in admiralty.89 90 case of or prior The law [32] 2. Matters within Admiralty Jurisdiction. While the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction,81 it is not exclusive of the jurisdiction of the state courts over remedies based on the common law, or on statutory developments thereof;82 but since the maritime law is a part of the law of the United States, the legislature of a state has no power to modify or to abrogate it;83 hence a state compensation act cannot deprive an employee of any remedy which he may have in admiralty under [§ 33] E. Conflict of Laws as to Time. A comthe maritime law.84 But by the weight of author- pensation act has no applicability in the ity the remedies in admiralty and under a com- injuries sustained prior to its enactment, pensation act may exist concurrently, 85 and in a to the time at which it is to take effect.91 compensation, it shall be presumed! 85. Berton v. Tietjen, etc., Dry | time contract, who was injured in in the absence of substantial evi- Dock Co., 219 Fed. 763 (New Jersey the course of his employment). dence to the contrary, that the act); Kennerson v. Thames Towboat claim comes within the provisions Co., 89 Conn. 367, 94 A 372, LRA1916A of the law, an award to a claimant 436; Lindstrom v. Mutual SS. Co., 132 who was employed in the state in Minn. 328, 156 NW 669, LRA1916D the car shops of a railroad, en- 935; Walker v. Clyde SS. Co., gaged in intra-state and interstate N. Y. 529, 109 NE 604, AnnCas1916B commerce, in the repair of a car 87 and note. which has been used both in interstate and intra-state commerce, was within the law, since the car was in no sense a part of interstate commerce. Okrzsezs v. Lehigh Valley R. Co., 155 NYS 919. (5) One who performs work in putting prospective subjects of interstate commerce in a state of preparedness for transportation is not engaged in interstate commerce. Sullivan v. Chicago, etc., R. Co., 163 Wis. 583, 158 NW 321. When employee engaged in interstate commerce see Commerce. 80. Watts v. Ohio Valley Electric R. Co., (W. Va.) 88 SE 659. [a] "An interstate carrier may, through the same employé or employés, engage at a given time in intrastate commerce, and at another in interstate commerce, Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 34 SCt 646, 58 L. ed. 1051, AnnCas1914C 163." Connole v. Norfolk, etc., R. Co., 216 Fed. 823, 824. [b] Ohio Workmen's Compensation Act (act March 14, 1913, 103 L. p 90) 51 provides that the act shall apply to employers and their employees engaged in intra-state and also in interstate and 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 the intra-state work may and shall be clearly separable and distinguishable from the interstate and foreign commerce, and then only when such employer and any of his workmen, working only within the state with the approval of the state liability board of awards, and SO far as not forbidden by any act of congress, voluntarily accept the provisions of the act. The effect of this provision is that the act does not apply to employers and their employees engaged exclusively in interstate commerce, but does apply to those engaged in both interstate and intrastate commerce where their mutual connection with intra-state work is separable from interstate and foreign commerce, when, and only when, they elect to be governed by the act. Connole v. Norfolk, etc., R. Co., 216 Fed. 823. 81. Const. art 3 § 2. 82. State v. Daggett, 87 Wash. 253, 151 P 648, LRA1916A 446. Jurisdiction of admiralty generally see Admiralty §§ 16-128. 83. Workman v. New York, 179 U. S. 552. 21 SCt 212, 45 L. ed. 314; State v. Daggett, 87 Wash. 253, 151 P 648, LRA1916A 446. 84. The Fred E. Sander, 212 Fed. 515; The Fred E. Sander, 208 Fed. 724; State v. Daggett, 87 Wash. 253, 151 P 648, LRA1916A 446. 315 [a] Not a proceeding in rem←(1) "The contract [of employment] in question may be assumed to be a maritime one. That would give the admiralty court the right to take jurisdiction over it. It could not take from our courts jurisdiction over a contract made in Connecticut by citizens of Connecticut, nor prevent its enforcement wherever it is operative by the procedure of the statute [state] of its origin. This contract is to be interpreted and enforced by the application of the same principles accorded any contract. A contract for work to be done, or services to be performed, or goods to be delivered, in a jurisdiction other than the place of contract is as enforceable in the State where the contract was made as in that where it was to be performed, unless the contract be against the law or the public policy of that jurisdiction, or its legal machinery is inappropriate or inadequate to its enforcement. Plainly this proceeding is a personal action, and not one in rem. The admiralty court has not exclusive jurisdiction. Knapp v. McCaffrey, 177 U. S. 638, 20 SCt 824, 44 L. ed. 921; Manchester v. Massachusetts, 139 U. S. 240, 11 SCt 559, 35 L. ed. 159; Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. ed. 95; Leon v. Galceran, 11 Wall. (U. S.) 185, 20 L. ed. 74; Belfast v. Boon, 7 Wall. (U. S.) 624, 19 L. ed. 266; Hine v. Trevor, 4 Wall. (U. S.) 555, 18 L. ed. 451." Kennerson v. Thames Towboat Co.. 89 Conn. 367, 372, 94 A 372, LRA1916A 436. (2) "The remedy provided by the Workmen's Compensation Act is a substitute for the common-law remedy. It is in no sense a proceeding in rem to enforce a maritime lien and may, therefore, exist concurrently with the remedy in admiralty. The state cannot interfere with the admiralty jurisdiction (Workman v. New York, 179 U. S. 552, 21 SCt 212, 45 L. ed. 314; The Lottawanna, 21 Wall. (U. S.) 558, 22 L. ed. 654), and if the act be valid, an injured employee may in certain cases have a choice of remedies, one under the act and another in ad miralty precisely as before he could "Where liability is asserted in the courts of this state against the owner of a vessel of this state to redress a maritime tort, the question of whether liability exists is to be determined by the common law of this state, as the same has been modified by the valid general statutes of the state, and, since the compensation act is now the law of this state, substituted for all common-law remedies before existing, that statute furnishes the rule upon which the liability and the extent of it are to be determined." Lindstrom v. Mutual SS. Co., 132 Minn. 328, 335, 156 NW 669, LRA1916D 935. 87 U. S. Rev. St. § 4283. 88. State V. Daggett, 87 Wash. 253, 151 P 648, LRA1916A 446. Compare Berton V. Tietjen, etc.. Dry Dock Co., 219 Fed. 763 (where the court held that the provisions of Rev. St. 88 4283-4285, as to limitation of liability, did not apply to a dry dock used for the repair of vessels, although capable of being floated and towed from place to place). "The Congress of the United States having passed a law which limits or measures the extent of the liability of the owner of a vessel to a workman who has sustained an injury, the legislature would not have the power to fix another, and different standard or measure," State v. Daggett, 87 Wash. 253, 259, 151 P 648, LRA1916A 446. 89. Sound State v. Daggett, 87 Wash. 253, 151 P 648, LRA1916A 446 (holdthe workmen's compensaing that tion act does not extend to a seaman employed on a boat operating on Puget in intra-state commerce, and denying mandamus to compel the industrial insurance commission to make a demand on the their pay rolls). vessel owners for a percentage of But see The Fred E. Sander, 212 Fed. 545 (where it was held that an employee, after making claim for and receiving compensation under the Washington act, could not proceed for the same injury in admiralty). 90, Arizona, etc., R. Co. v. Clark, 207 Fed. 817, 125 CCA 305 [aff 235 U. S. 669, 35 SCt 210, 59 L. ed. 415, LRA Workmen's Compensation Act of June 1915C 834] (holding that Arizona 8, 1912 [Sp. Sess. L. (1912) c 14], was inapplicable to an action for injuries to a servant, where the injuries oc curred prior to the passage of the act). 91. Salem Hospital v Olcott, 67 Or. 448, 136 P 341 (holding that no workmen injured before June 30, 1914, being entitled to benefits under 86. Lindstrom v. Mutual SS. Co., the act of Febr. 25, 1913, c 112, the 132 Minn. 328, 156 NW 669, LRA "Workmen's Compensation Act," and 1916D 935; Walker v. Clyde SS. Co., the commission being authorized, by 215 N. Y. 529, 109 NE 604, AnnCas§ 23, to provide hospital accommoda1916B 87. But compare Schuede v. Zenith SS. Co., 216 Fed. 566 (holding that the Ohio Employers' Liability Act was not applicable to the case of a seaman employed under a mari tions only for injured workmen "who are entitled to benefits hereunder." the secretary of state properly refused to audit the claim of a hospital for the sum which the commission in force at the time of the injury governs the employee's right to compensation.92 The rights of others, however, in the case of the employee's death, are governed by the law in force at the time of his death.93 As to matters of procedure, the law in force at the time of seeking to enforce the right to compensation will control.94 V. GENERAL RULES OF CONSTRUCTION [34] The courts have been practically unanimous in according to the workmen's compensation acts a broad and liberal construction in order to effectuate their evident intent and purpose, 95 al though in some decisions it has been held that, had contracted to pay it for hospital 94. Peo. v. McGoorty, 270 Ill. 610, 92. Schmidt v. O. K. Baking Co., (Conn.) 96 A 963; Deibeikis v. LinkBelt Co., 261 Ill. 454, 104 NE 211, AnnCas1915A 241; Baur V. Essex County Ct. C. Pl., 88 N. J. L. 128, 95 A 627. [a] Provisions as to notice.-"Preliminary to passing upon the question thus presented as to the consequences attached to the delay in the giving of notice to the employer, it becomes necessary to determine whether the provisions of section 21, c. 138, of the Public Acts of 1913, or those of sections 3 and 13 of chapter 288 of the Public Acts of 1915, which did not go into effect until May 20, 1915, both dealing with that subject, but in a somewhat different manner, are controlling. In the claimant's behalf, it is contended that the provisions of the earlier act, which the court below interpreted and applied, relate to procedure and remedy, and therefore were superseded by those of the later act in force when the hearing before the commissioner was had. On behalf of the respondent, it is insisted that they concern substantive rights. The latter contention is the correct one. The relation between the parties was contractual, their rights and obligations arose from that relation, and the terms and conditions of it were defined by the statute in force which formed a part of the contract of employment. Sibley v. State, 89 Conn. 682, 96 A 161; Powers v. Hotel Bond Co.. 89 Conn. 143, 93 A 245. By these terms and conditions as prescribed by the act of 1913, the liability of an employer, in case of injury to the employé, was not fixed by the simple fact of injury to the employé arising out of and in the course of his employment. The element of notice of Injury to the employer, if he be ignorant of it, entered into the very essence of the injured party's claim and the extent of it. The time when the notice should be given was made a factor to be considered in determining what the claim should be which he was entitled to enforce in the manner prescribed by statute. The act of 1913 was in force when this elaimant's injuries were received, when the 30 days provided by it for notice thereof to be given to his employer had run-when notice was in fact given to his employer and when the attempt to enforce his claim was begun. Whatever right of compensation he might have had thus became fixed, and the extent of it determined, or, rather, the elements to be considered in its determination, fixed. Whatever inchoate right, arising from his injuries, he may have lost by noncompliance with the conditions precédent to a definite and enforceable claim was then lost. Whatever that loss was, it could not be restored to him by subsequent legislation. Any attempt to do so would be to deprive his employer of a right vested in it under its contract.' Schmidt v. O. K. Baking Co., (Conn.) 96 A 963, 964. 93. State v. Ramsey County Dist. Ct., 132 Minn. 249, 156 NW 120; State Hennepin County Dist. Ct., 131 Minn. 96, 154 NW 661. V. 95. Conn. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A 372, LRA1916A 436; Powers v. Hotel Bond Co., 89 Conn. 143, 93 A 245. Mass.-Young v. Duncan, 218 Mass. 346, 106 NE 1; In re Sullivan, 218 Mass. 141, 105 NE 463, LRA1916A 378; In re Donovan, 217 Mass. 70, 104 NE 431, AnnCas1915C 778; In re Coakley, 216 Mass. 71, 102 NE 930, AnnCas1915A 867. N. Y. In re Petrie, 215 N. Y. 335, 109 NE 549; Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 NYS 620; Rheinwald v. Builders' Brick, etc., Co., 168 App. Div. 425, 153 NYS 598; Winfield v. New York Cent., etc., R. Co., 168 App. Div. 351, 153 NYS 499; McQueeney v. Sutphen, 167 App. Div. 528, 153 NYS 554. R. I.-Donahue v. R. A. Sherman's Sons Co.. 98 A 109. Wash.-Zappala v. Industrial Ins. Commn., 82 Wash. 314, 144 P 54, LRA1916A 295; Peet V. Mills, 76 Wash. 437, 136 P 685, LRA1916A 358, AnnCas1915D 154. But compare Hillestad v. Industrial Ins. Commn.. 80 Wash. 426, 428, 141 P 913, AnnCas 1916B 789 (where the court said: "The principles of the common law can be of little assistance to us in measuring the right of a workman to claim compensation under the industrial insurance law. It is the purpose of that law to compel the industries of the state to bear the burden of accidents occurring in their operation, and being in derogation of the common law, it cannot be construed so as to include those who do not, by words or necessary implication, come within its terms"). Wis.-Kiel v. Industrial Commn., 163 Wis. 441, 158 NW 68; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 NW 539; Foth v. Macomber, etc., Rope Co., 161 Wis. 549, 154 NW 369; Sadowski v. Thomas Furnace Co., 157 Wis. 443, 146 NW 770; Tallmen v. Chippewa Sugar Co., 155 Wis. 36, 143 NW 1054; Milwaukee v. Miller. 154 Wis. 652, 144 NW 188, LRA1916A 1. "The act is to be interpreted in the light of its purpose and, so far as reasonably may be, to promote the accomplishment of its beneficent design." Young v. Duncan, 218 Mass. 346, 349. 106 NE 1. "The statute was the expression of what was regarded by the legislature as a wise public policy concerning injured employees. Under such circumstances we think that it is to be interpreted with fair liberality, to the end of securing the benefits which it was intended to accomplish.' In re Petrie, 215 N. Y. 335, 338, 109 NE 549. "In construing a statute which is referable to the police power and was originated to promote the common welfare, supposed to be seriously jeopardized by the infirmities of an existing system-the conditions giving rise to the law, the faults to be 652, "The act should be liberally interpreted, to the end that the purpose of the legislature in suppressing the mischief and advancing the remedy be promoted even to the inclusion of cases within the reason although outside the letter of the statute, and that every hazardous industry within the purview of the act should bear the burden arising out of injuries to its employees regardless of the cause of the injury." Zappala V. Industrial Ins. Commn., 82 Wash. 314, 316, 144 P 54, LRA1916A 295. [a] Insurance acts.-(1) "An employer who is insured in the State fund has been compelled to pay in advance for the injuries arising in his employment, and upon that account, by section 53, is granted immunity from all other liability on account of accident to his employees, and the employees are deprived of all other remedies. If the act is to be construed technically it deprives the employee of its beneficial provisions and the employer from the protection which he has paid for and the State has undertaken to give." McQueeney v. Sutphen, 167 App. Div. 528, 531, 153 NYS 554. (2) "The act was passed to benefit workmen in hazardous employments who were without a legal remedy. Compensation is given without regard to the fault of the master at common law or under the employers' liability acts. The law has been and should be construed fairly, indeed liberally, in favor of the employee. Against its justice or economic soundness nothing can be said. (Jensen V. Southern Pac. Co., 215 N. Y. 514, 109 NE 600, LRA1916A 403, AnnCas1916B 276.) The power of the legislature to enact such laws is expressly declared to be beyond the limitations of the state Constitution. (Const. N. Y. art. 1, § 19.) It would not be difficult, by an adherence to the concepts of liability for negligence, based on the failure to foresee and prevent accident (Ives v. South Buffalo R. Co., 201 N. Y. 271, 94 NE 431, 34 LRANS 162, AnnCas1912B 156), rather than to the principles of industrial insurance for injuries suffered by workmen in the course of their employment without regard to fault as a cause of such injury (Workmen's Compensation Law, § 10; Post v. Burger, 216 N. Y. 544, 111 NE 351, AnnCas1916B 158), to defeat the purpose of the constitutional and legislative provisions." Heitz V. Ruppert, 218 N. Y. 148, 154, 112 NE 750. 96. Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 303, 148 NW 684. "This statute, being in derogation of the common law, should be strictly construed, and that fundamental principle must be applied, although it is remedial and provides a remedy against a person who otherwise would not be liable." Andrejwski v. Wolverine Coal Co., supra. |