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to any person interested, who makes request of the secretary, Mr. Charles T. Gwynne, 65 Liberty St., New York, N. Y. The purpose of this joint committee is not only to discover the causes of litigation, but if possible to discover remedies which will tend to decrease its volume. We also learn from a letter received from Mr. Daniel S. Remsen, chairman of the Bar Association Committee, that one of the most beneficial results of the committee's deliberations is likely to be the discovery of some workable scheme of arbitration and conciliation as a means of preventing litigation.

A. H. ROBBINS.

INTERSTATE RAILROAD EMPLOYES AND WORKMEN'S COMPENSATION ACT.

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By the Act of April 22, 1908, Congress undertook to provide a new remedy for a person "suffering injury while he is employed by" an interstate carrier, by railroad in interstate or foreign commerce, and also, in case of his death gave new remedy his personal representative for the benefit of . . . . [his] surviving widow . . . . and children, and if none then of . . . [his] parents, and if none, then to the next of kin dependent upon. . . [him] for . . . . [his] injury or death, resulting in whole or in part from the negligence of any of its officers, agents, or an employe of such carrier, or by reason of any defect or insufficiency due to negligence in its cars, engine, appliances, machinery, track, roadbed, ways or works."

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merly may have been found under local law emanating from a different source."

At first the legal profession did not generally grasp the fact that the only remedy an employe engaged in the interstate commerce of an interstate railway company, injured by reason of its negligence or of its officers or employes had was that given by the Federal statute. It has taken many decisions to thoroughly drive this fact home.2

(1) Atlantic Coast Line R. Co. v. Burnett, 36 Sup. Ct. Rep. 75, reversing 163 N. C. 186; 79 S. E. 414. In the case in the state court it was held that the fact that action was brought more than two years after the injury was inflicted must be presented by answer, like a plea of the statute of limitations, and if no such plea was filed that defense was not available, even though the complaint or declaration showed that more than two years had elapsed between the injury and the time the suit was brought. The Federal Supreme Court reversed the case on the ground that the plaintiff must show he had brought his action within two years after he received his injury. The same rule has been declared by the Supreme Court of Tennessee. Vaught v. Virginia & S. W. R. Co., 179 S. W. 314.

(2) Mondu v. N. S. N. H. & H. R. Co., 223 U. S. 1, 32 S. C. 169; 56 L. Ed. 327; 38 L. R. A. (N. S.) 44; 1 N. C. C. 875, reversing 82 Conn. 352; 73 Atl. 754; St. Louis S. F. & T. R. Co. v. Seale, 229 U. S. 156; 33 Sup. Ct. 651; 57 L. Ed. 1129.

Wabash Ry. Co. v. Hayes, 234 U. S. 86; 34 Sup. Ct. 729; 58 L. Ed. 1126, affirming 186 Ill. App. 511.

St. Louis St. Ry. v. Hesterly, 228 U. S. 702; 33 Sup. Ct. 703; 576 L. Ed. 1031, reversing 94 Ark. 240; 135 S. W. 874; Taylor v. Taylor, 232 U. S. 363; 34 Sup. Ct. 350; 58 L. Ed. 638. Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59; 33 Sup. Ct. 192; 57 L. Ed. 417, reversing 189 Fed. 495. Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570; 33 Sup. Ct. 135; 157 L. Ed. 274, affirming 192 Fed. 919; 113 C. C. A. 665.

Grand Trunk R. Co. v. Lindsay, 233 U. S. 42; 34 Sup. Ct. 581; 58 L. Ed. 828, affirming 201 Seaboard Air Line Fed. 836; 120 C. C. A. 166.

R. Co. v. Horton, 233 U. S. 492; 34 Sup. Ct. 635; 58 L. Ed., reversing 162 N. C. 424; 78 S. E. 494. N. Carolina R. Co. v. Factory, 232 U. S. 248; 34 Sup. Ct. 305; 58 L. Ed. 591, reversing 156 N. C. 496; 72 S. E. 858. Niles v. Central Vt. R. Louisville & N. Co., 87 Vt. 356; 89 Atl. 629. BromR. Co. v. Kemp, 140 Ga. 657; 79 S. E. 558. lett's Southern R. Co., 98 S. C. 319; 82 S. E. 501. C. & C. v. St. Louis & S. F. R. Co., 92 Kan. 132; 139 Pac. 1177. La Crosse v. New Orleans, T. Wagner & M. R. Co., 135 La. 129; 64 So. 1012. v. Chicago & S. R. Co., 265 Ill. 245; 106 N. E. 809. Rich v. St. Louis & S. F. R. Co., 163 Mo. App. 379; 148 S. W. 1011.

So exclusive in its character is the Federal Act that no action can be maintained under it for the benefit of relatives other than those specified by it."

If a state statute allows an administrator to maintain an action because of the death of an employe engaged in interstate commerce, for one whom the Federal Act does not name as entitled to receive a benefit, the action cannot be maintained on the Federal statute, for that statute has limited the number of persons for whose benefit action may be maintained. This conclusion is reached in another way the statute was necessary to enable an action to be maintained for the benefit of the persons designated, and without it none could be maintained; and, therefore, one cannot be maintained for the benefit of a person not designated by the statute, for no cause of action has been created for the benefit of such a person.*

Whether or not in such an instance an action can be maintained on a state statute for the benefit of such omitted beneficiary has not, I believe, been decided; but I do not think it can, for the reason that Congress has designated in cases of fatal negligent injuries those only for whose benefit actions can be maintained under Federal statute, and this is equivalent to a declaration by it that no other action shall be brought for the benefit of a person not designated by the Federal statute by reason of the negligent fatal injury of an interstate employe.5

(3) Thomas v Chicago & N. W. R. Co., 202 Fed. 766.

(4) In Tonsellito v. New York & H. R. R. Co. (N. J.) 94 Atl. 804, it was held that a father could maintain an action under the Federal statute for the loss of service of his infant child where the child survives the injury-a very doubtful decision.

(5) In Atlantic Coast Line R. Co. v. Burnett, 36 Sup. Ct. 75 (reversing 163 N. C. 186, 79 S. E. 414) Justice Holmes says: "In dealing with enactments of a paramount authority, such as Congress is, within its sphere over the states, we are not to be curious in nomenclature if Congress has made its will plain, nor to allow substantive rights to be impaired under the name of procedure. But irrespective of the fact that the

A recovery of damages is given only in case of an injury occasioned by negligence. "It was the intention of Congress. to place the action upon negligence only, and to exclude responsibility of the carrier to the employes for defects and insufficiencies not attributable to negligence."

Damages for a willful injury, therefore, cannot be recovered under the federal statute; and, to recover then resort must be had to the common law or a state statute. As Congress did not pretend to provide for a recovery in the case of a willful injury by the enactment of the statute of 1908, it did not prohibit a recovery of damages for such an injury.

The federal statute in no way limits the amount of damages recoverable when the injured employe himself brings the action; it simply says that the interstate carrier by railroad "shall be liable

act of Congress is paramount, when a law that is relied on as a source of an obligation in tort sets a limit to the existence of what it creates, other jurisdictions naturally have been disinclined to press the obligation further. There may be special reasons for regarding such obligations imposed upon railroads by the statute of the United States as so limited. At all events, the act of Congress creates the only obligation that has existed since the enactment in acts like this, whatever similar ones formerly may have been found under local law emerging from a different source. If it be available in a state court to found a right and the record shows a lapse of time after which the act says no action shall be maintained, the action must fail in the courts of a state as in those of the United States."

(6) Seaboard Air Line R. Co. v. Horton, 233 U. S. 492; 34 Sup. Ct. 635, 58 L. Ed. 1062, reversing 162 N. C. 424, 78 S. E. 499; Wabash R. Co. v. Hayes, 234 U. S. 86; 34 Sup. Ct. 728, 58 L. Ed. 1226.

(7) "The title clearly indicates that it does not cover all the grounds of liability, but that the act relates only to the particular case formerly provided for in it. The provisions of the act relate solely to liability on account of negligence. The several states, therefore, in the exercise of their police power, may make such laws and regulations for the protection of labor within the state as may seem best, unhampered by the Federal Employers' Liability Act, except so far as they attempt to prescribe a liability for negligence or the remedies therefor in interstate commerse." Winfield N. York Cent. & H. R. Co., 153 N. Y. Supp. 499; 168 App. Div. 351.

V.

in damages to any person suffering injury while he is employed by such carrier in such interstate commerce or, in case of the death of such employe, to his or her personal representative for the benefit of the surviving widow or husband or children of such employe," etc. A state statute fixing the amount of recovery in case of death, therefore, has no application to an action under this

statute.

When the action was brought by the administrator of the deceased for the deceased's beneficiaries for an injury received prior to April 5, 1910, when the supplemental section nine was adopted, the amount of damages recoverable under the interpretation of the Federal Supreme Court was actual pecuniary loss the beneficiary had suffered in the death of the deceased employe-the deceased's right of action having died with him-but the amendment of 1910 preserved the deceased's right of action for the benefit of the beneficiaries, and the amount now recoverable by the administrator is not limited merely to the pecuniary loss they have suffered by the employe's death.

It will then be seen that Congress has practically legislated upon the question of damages; and, therefore, state legislation upon that subject is superseded by the federal statute.

Can, then, an interstate employe claim the benefit of the usual state workmen's compensation acts when he has been negligently injured, or can the interstate railroad insist that it is liable only under such acts?

This question has been answered in several states. Thus, in California it has been held that the Workmen's Compensation Act of that state had no application to an employe killed while engaged

in the interstate commerce of a railroad

carrier or to such an employe when merely injured."

(8) Southern Pac. Co. v. Pillsbury (Cal.) 151 Pac. 277.

(9) Smith v. Industrial Accident Co. (Cal.) 147 Pac. 600.

In Illinois the Supreme Court held that the Workmen's Compensation Act of 1911 of that state had no application to a deceased employe killed when engaged at the time of his injury in interstate. commerce, and that "the recovery must be had, if at all, under and subject to the provision of the Federal Employers' Liability Act." But it should be observed that this Illinois statute especially excepted such an employe from its provisions.10 The decision, however, is not based really upon this exception in the statute. But in New Jersey, the contrary, it would seem, has been decided.11

The New York Workmen's Compensation Act, by its provisions, is made applicable "to employes and employers engaged in interstate commerce, and also 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 this mutual connection with interstate work may and shall be clearly separable and distinguishable from interstate and foreign commerce, except that such employer and his employes working only in the state may, subject to the approval and in the manner provided by the Commission, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employes."

In the construction of this section the Court of Appeals declared that "the legis lature said that it did not intend to enter any field from which it had been or should be excluded by the action of the Congress of the United States."

An employe that was injured was employed in unloading a steamship which

(10) Staley v. Illinois Cent. R. Co. (Ill.) 109 N. E. 342, reversing 186 Ill. App. 593.

(11) West Jersey Trust Co. v. Philadelphia R. R. Co. (N. J. Supp.) 95 Atl. 753; Rousonville v. Central Co., 94 Atl. 392.

scribe the rules of liability for injuries. resulting from negligence, is paramount and exclusive, and must so continue until Congress shall see fit to remit the subject to the received police powers of the state," but it said "that where the federal and state governments have jurisdiction to enter the same sphere, the state may legislate upon matters within that sphere until such time as Congress shall prescribe regulations upon the same sub

was berthed alongside a pier in the Hud-
son River.
When the accident occurred
he was moving an electric truck upon a
gangway connecting the vessel with the
pier. The employer was a common car-
rier by railroad, a Kentucky corporation.
It owned and operated this steamship
between New York City and Galveston;
but it was not shown that it in any way
was operated in connection with a line
of railroad, and in the report of the acci-
dent it stated its business to be "trans-ject."
portation by steamships engaged solely
in interstate commerce." The court held
that as far as the case was concerned,
it was a carrier by water, the business
being transportation by steamships,
which did not appear, even indirectly, to
be related to transportation by railroad.

The court reached the conclusion that the employment the deceased was engaged in was not governed by the federal statute. Reaching this conclusion, the court then held that the Workmen's State Compensation Act applied to the

case.12

In a

This analysis shows that an employe engaged in a particular interstate commerce not covered by the Federal Liability Act is subject to the usual Workmen's State Compensation Act. subsequent case the Court of Appeals held that an employe engaged in the interstate commerce of a carrier by railroad, who was accidently injured by his employer, but through no negligence on its part, was entitled to compensation under the Workmen's Compensation Act of the State, which awarded damages to the injured employe regardless of the question of negligence.

The court admitted that the federal statute “in so far as it attempts to pre

(12) Jensen v. Southern Pacific Co. (215 N. Y. 414); 109 N. E. 600, affirming 152 N. Y. Supp. 1120.

The court then proceeds to analyze the two statutes under review, and points out that the federal statute imposes a liability on the employes only in an instance where its negligence causes the injury; while the state statute enforces. a system of insurance and a liability on the part of the employer regardless of the question of negligence. "As to accidents to those engaged in interstate commerce resulting from negligence, which are within the Federal Employers' Liability Act, Congress has assumed to deal with the subject, and therefore all state regulations within that sphere must be inoperative in so far as the separate and distinct field of compulsory insurance against accidents, not the result of negligence by the employers, is concerned, Congress has not assumed to act upon the subject, and until such time as Congress does enter this distinct and separate field, it is open to occupancy by the state, provided only that in occupying it the state does not go beyond the necessities of the case, or unreasonably burden the exercise of the privileges received by the Constitution of the United States. While it is true that our state statute in terms is broad enough to cover accidental injuries caused by negligence, that portion of it which affects accidental injuries caused by negligence resulting to those engaged in interstate commerce, which are within the Federal Employers' Liability Act, is as ineffective and inoperative as if it had not been enacted. The

legislature intended that injuries resulting from negligence to those engaged in interstate commerce, which are within the federal statute, should not be affected by the provisions of the state statute." In conclusion the court says: "In so far as employers and employes working in this state are engaged in interstate commerce and injuries result to the employes which are not the result of negligence . . 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 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 his liability to his employes 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 take away liability.18

Indianapolis, Ind.

W. W. THORNTON.

(13) Winfield v. New York Cent. & H. R. Co., (N. Y.) 110 N. E. 614, affirming 168 App. Div. 351; 153 N. Y. Supp. 499.

The same result was reached in New Jersey where damages were sought for an injury caused by an interstate railroad to a servant then engaged in interstate commerce, not occasioned by negligence. Winfield v. Erie R. R. Co., 96 Atl. Rep. 394. See this case reviewed in 82 Central Law Journal 171. On the subject of this article see also 82 Central Law Journal 42.

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The complaint in this cause alleged that the plaintiff below, who is appellant here, was on the 26th day of April, 1913, engaged in the service of the defendant as a coal miner; that it was the duty of the defendant to furnish plaintiff with a safe and suitable place in which to perform his work, and to provide him with safe and suitable tools, props, and equipment with which to perform such services; that plaintiff requested timber to be used for the purpose of properly supporting the roof of the room in the mine of the defendant company, where plaintiff was employed as a miner, for a period of two or three days prior to the accident; that the defendant and its employes failed and neglected to supply plaintiff with the timber requested, or with any timber for the support of the roof; that by reason of this neglect the plaintiff was injured; and that the roof of said room fell because of the failure and neglect of the defendant and its officers, servants, and agents to supply timber. The accident occurred on the 26th day of April, and was a result, as alleged by plaintiff, of a fall of a portion of the roof of the room where he was engaged in the service of the defendant at the time, which resulted in the crushing of the right arm of the plaintiff, necessitating its amputation. The defendant below by way of answer, after denying the essential facts upon which its negligence is predicated, pleaded assumption of risk by the plaintiff, contributory negligence, and the fellow-servant doctrine. Reply denying the new matters pleaded in the answer was filed by the plaintiff, and the cause proceeded to trial. After both parties had introduced all their evidence, the defendant moved for an instructed verdict, setting forth in its motion fifteen grounds upon which it

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