York Central R.R. Company v. Winfield,' it was definitely determined that Congress, having entered the field, the states no longer have any right to legislate with respect to employees of interstate railroads while they themselves are engaged in furthering interstate commerce, although the injured employee may have no remedy under the Federal Liability Act, and it was further decided in Erie R.R. Co. v. Winfield,2 that the states have no right to require of interstate carriers or their interstate employees to make an election between the provisions of the Federal law and any state compensation law, or to presume or impute an election to them by any statutory presumptions. These decisions definitely place all employees of interstate railroads, engaged in furthering interstate commerce, under the liability act applicable to railroads and not under any state compensation laws.

ADMIRALTY

In an important case it was held that neither the Federal Employers' Liability Act nor a state compensation law applied to injuries coming within admiralty jurisdiction. To meet this situation Congress, by Act of October 6, 1917, amended clause 3 of Sections 24 and 256 of the Judicial Code, thereby saving to suitors the rights and remedies under the workmen's compensation law of any state and giving to the injured party, or his dependents, the right to bring an action in admiralty or submitting claim under a state compensation plan.

POWER OF CONGRESS TO PROVIDE FOR COMPENSATION

Congress undoubtedly possesses the power to establish a compensation system for employers and employees operating carriers engaged in interstate commerce. The question is noticed only incidentally here, as we are primarily concerned with compensation for industrial injury, although legislation or judicial decision relating to it will incidentally affect many industrial employments. COMPENSATION FOR EMPLOYEES OF INTERSTATE CARRIERS During the first and second sessions of the Sixty-second Congress an Employers' Liability and Workmen's Com

1 244 U. S., 147, 37 Sup. Ct. Rep. 546.

2 244 U. S. 170, 37 Sup. Ct. Rep., 556.

3 Southern Pacific Co. v. Jensen, 244 U. S., 205; 37 Sup. Ct. Rep., 524.

pensation Commission was created, consisting of two Senators, two members of the House, and two private citizens, who were authorized to investigate and report on the application of the principle of workmen's compensation to the federal jurisdiction. Elaborate hearings were held and a bill was drafted and recommended applying the principle of compensation to interstate steam railroads. The bill passed the Senate by a large majority, was amended by the House to include interstate express companies, but failed to receive further consideration in the Senate. The second employer's liability act of 1908 is the only Congressional legislation dealing with personal injuries sustained by the employees of interstate carriers. It greatly modified the common-law rules of employer's liability, but applies only to interstate railroads.

STATE CASES INVOLVING FEDERAL JURISDICTION

This condition has led to a number of cases involving the application of state compensation legislation to injuries asserted to be within the federal jurisdiction. The acts of both New York and New Jersey have been held to permit compensation for injuries sustained upon the navigable waters of those states.2 A New York court has held that the exclusiveness of the compensation remedy applies only to suits at common law, but that where the injury was sustained within the admiralty jurisdiction the employee may choose either remedy. The same court likewise held the state compensation act to apply to injuries received by an employee in interstate commerce to the extent that such act may operate “within the jurisdiction of the State until Congress by entering the field excludes state action."4 The courts of Connecticut, Minnesota, and New Jersey have taken a similar view, declaring likewise that the federal employers' liability act is not exclusive in that it prevents the states from exercising their police power for the protection of workmen within their respective common

1

Report Federal Employers' Liability and Workmen's Compensation Commission, 62d Congress, 2d Session, Senate Document No. 338.

2 Berton v. Tietjen & Lang Dry Dock Co., 219 Fed., 763.

3 Walker v. Clyde S. S. Co., 215 N. Y., 529.

4 Jensen v. So. Pacific Co., 215 N. Y., 514.

wealths.1 The Supreme Courts of Illinois and California express a diametrically opposite opinion.2

The decisions of the Supreme Court in the cases hereinbefore cited under the heading of Interstate Commerce. have now, however, brought about practical unanimity of decisions in the several states.

DEPENDENTS

The states differ very greatly in defining dependent persons and in limiting or extending the degree of dependency of those who may have the benefit of compensation for the accidental death of a workman. These differences very naturally reflect variations in policy, since the right to give or withhold a conditional recovery for death is created entirely by statute, save in a state like Kentucky, where a constitutional provision prevents any limitation on the amount recoverable for either injury or death due to negligence. This provision affected the validity of the first Kentucky legislation, but was overcome by providing a permissive agreement for employer and employee, since the limitation applied to the act of the legislature and not to the private arrangement of the parties.

NON-RESIDENT ALIEN DEPENDENTS

4

Non-resident alien dependents are an important subject of legislative and judicial consideration. The mere fact that a dependent is an alien does not of course bar recovery without statutory intervention. New Hampshire and New Jersey exclude non-resident alien dependents from the benefit of their respective acts. Twenty-one states include them, but fourteen of these limit either the beneficiaries or the amount payable. In the remaining states, where no statutory provision has been made, the silence of the legislature has in some instances led them to be included by courts or commissions. 1 Kennerson v. Thames Towboat Co., 89 Conn., 367.

Lindstrom v. Mutual S. S. Co. (Minn.), 156 N. W., 669.

Stoll v. Pac. Coast S. S. Co., 205 Fed., 169.

West N. J. Trust Co. v. Phila. & R. R.R. Co., 88 N. J. Law, 102.

2 Staley v. Ill. Cen. R.R. Co., 268 Ill., 356.

S. P. Co. v. Pillsbury, 170 Cal., 782.

3 Kentucky State Journal Co. v. Workmen's Compensation Board, 161 Ky., 562. Vugic v. Youngstown Sheet & Tube Co., 220 Fed., 390. (Applying Ohio laws.) Petrozino v. Mutual Liability Co., 219 Mass., 498.

THE NOTICE OF INJURY

IMPORTANCE OF NOTICE OF INJURY

Every statute requires notice of an injury as a prerequisite to a claim predicated upon it. Such notice is likewise of equal importance for the purpose of providing medical aid where it is required or voluntarily given and as a means of preventing slight injuries becoming serious through infection or lack of attention.

NOTICE IN DISEASE CASES

Every court which has given attention to the subject declares, in one way or another, that an accident or an injury within the meaning of the various acts is an event sufficiently definite in time and place to be the subject of specific notice. This fact is indicative of the serious difficulty attached to giving requisite or necessary notice with respect to many forms of disability which have gradually become included under the phrase "injury arising in the course of employment. The natural tendency toward a broad application of a remedial statute is accompanied by a native difficulty of definitely describing, limiting, or locating the origin of disorders and disease alleged to be caused or aggravated by accident or injury.

ACTUAL NOTICE

Notice is usually required to be given in writing, but it is sufficient if actual notice of the accident is had, and this is presumed wherever a foreman, superintendent, or other representative or agent of the individual or corporate employer is actually aware of the accident or injury, or is in possession of facts sufficient to put a reasonable person upon inquiry, which inquiry or undertaking would naturally disclose the fact of injury.1 But notice must be

1 State v. District Court, 129 Minn., 423.

Acherson v. National Zinc Co., 96 Kan., 781.

Troth v. Millville Bottle Works (N. J.), 98 Atlantic, 435.

In re Bloom (Mass.), 111 North Eastern, 45.

Matwiczuk v. Am. Car & Foundry Co. (Mich.), 155 N. W., 412.

Pellett v. Industrial Comm. (Wis.), 156 N. W., 956.

Knoll v. City of Salina (Kan.), 157 Pac., 1167.

Schmidt v. Baking Co. (Conn.), 96 Atlantic, 963.

of such a nature that the employer is not unfairly prejudiced,1 for it is an element of unusual importance in the prevention and relief of accident, and it may exercise a powerful influence on the seriousness and extent of disability and its legal consequences.

1 Malkowsky v. Silbervicz, 1 Conn. Comp. Dec., 136.

Mackay v. Am. Brass Co., 1 Conn. Comp. Dec., 526.

Ehrhart v. Industrial Accident Comm. (Cal.), 158 Pac., 193.