[blocks in formation]

nity in the trial court, this court cannot review such final judgment and hold that the state enactment was unconstitutional or that the right or immunity so claimed had been denied by the highest court of the State, if that court did nothing more than decline to pass upon the Federal question because not raised in the trial court as required by the state practice. Spies v. Illinois, 123 U. S. 131, 181; Miller v. Texas, 153 U. S. 535, 538; Morrison v. Watson, 154 U. S. 111, 115."

The original action was based upon a state statute; the answer did not set up or rely upon the federal act; the trial court's attention was not called thereto; and although urged to hold liability depended upon it, the Supreme Court declined to pass upon that point because not presented to the trial court. This ruling seems in entire accord with both state statutes and established practice. Rev. Stats. Mo. 1909, § 2081; St. Louis v. Flanagan, 129 Missouri, 178; Freeland v. Williamson, 220 Missouri, 217. The writ must be dismissed.




Nos. 469, 470. Argued January 10, 11, 1917.—Decided May 21, 1917.

It being settled that in the absence of congressional legislation the commerce clause does not forbid a State to legislate concerning the relative rights and duties of employers and employees within her borders although engaged in interstate commerce, a contention to the con

[blocks in formation]

trary will not afford jurisdiction to this court to review a state judg


So held where an Ohio elective Workmen's Compensation Law, in withdrawing the defenses of contributory negligence, negligence of fellow servant and assumption of risk from employers not accepting provisions of the act, was claimed to contravene the commerce clause, as applied to a company engaged in interstate transportation by steamship.

The objection that the Ohio Compensation Act, as applied to a steamship company engaged in interstate commerce, would be an unconstitutional invasion of the federal maritime jurisdiction cannot be considered in this case, since the jurisdiction of the court below is confined to review of the trial court's judgment for errors appearing on the record, and this objection was neither made in the trial court, nor, clearly, in the petition in error before the court below, nor definitely mentioned in the latter court's opinion. Mutual Life Insurance Co. v. McGrew, 188 U. S. 291.


THE cases are stated in the opinion.

Mr. Tracy H. Duncan, with whom Mr. Frank S. Masten was on the brief, for plaintiff in error.

Mr. George H. Eichelberger for defendants in error.

Memorandum opinion by MR. JUSTICE MCREYNOLDS.


Seeking damages under the laws of Ohio, defendant in error Wattawą brought this action in the Common Pleas Court of Cuyahoga County. He alleged that by reason of the Steamship Company's negligence he suffered personal injuries in September, 1913 while employed by it as a deck hand on the Edwin N. Ohl then lying at Sandusky, Ohio; and that although an employer of more than five men the company was not a subscriber or contributor to the State Insurance Fund provided for by the Act of May 31, 1911-the first Ohio Workmen's Compensation Act.1 In defence General Code, §§ 1465-37 to 1465-70.


Opinion of the Court.

244 U. 8.

the company claimed that although employing more than five men it was engaged in interstate commerce and therefore was not required to subscribe to the State Insurance Fund; denied negligence; and alleged that the accident resulted wholly from the employee's want of care and moreover that he had assumed the risk. Upon motion the allegation as to assumption of risk was stricken out.

The court charged that as the company had not accepted the Compensation Act it could not rely upon common-law defences based on the fellow-servant rule, assumption of risk or contributory negligence. Judgment upon a verdict for $5,200.00 was affirmed by the Court of Appeals, and petitions in error and for certiorari were denied by the Supreme Court.

We are asked to reverse the action of the Court of Appeals upon two grounds. First, because the company was engaged in interstate commerce and therefore could not be subjected to the Compensation Act without burdening such commerce contrary to the Commerce Clause of the Federal Constitution. Second, because Article III, § 2 of the Constitution extended judicial power to all cases of admiralty and maritime jurisdiction and thereby rendered the general maritime law part of the federal laws not subject to alteration by state statutes.

The first point relied upon is entirely without merit and inadequate to support our jurisdiction. In the absence of congressional legislation the settled general rule is that without violating the Commerce Clause the States may legislate concerning relative rights and duties of employers and employees while within their borders although engaged in interstate commerce. Lake Shore & Michigan Southern Ry. Co. v. Ohio, 173 U. S. 285, 297; The Minnesota Rate Cases, 230 U. S. 352, 408.

The second reason for reversal now set up was not presented to the trial court in any form. It was not pointed out clearly, if at all, by the petition in error before

[blocks in formation]

the Court of Appeals and was not definitely mentioned in the opinion of that court whose powers only extend to a review of the trial court's judgment for errors appearing on the record. Section 12,247, Ohio General Code, as amended by Ohio Laws 103, pp. 405, 431. The question therefore is not properly before us. Mutual Life Insurance Co. v. McGrew, 188 U. S. 291, 308, 309.

The writ of error must be dismissed for want of jurisdiction.


Counsel for the Steamship Company have admitted of record here that this cause involves the same state of facts and questions of law as those presented in Number 469. They were heard together and the same judgment will be entered in each of them.




No. 280. Argued February 28, 1916; restored to docket for reargument November 13, 1916; reargued January 31, February 1, 1917.-Decided May 21, 1917.

The Federal Employers' Liability Act applies only where the injury occurs in railroad operations or their adjuncts, and cannot be extended to interstate maritime transportation merely because the vessel in the case is owned and operated by an interstate carrier by railroad.

The word "boats" in the statute refers to vessels which may be prop

[blocks in formation]

erly regarded as but part of a railroad's extension or equipment as understood and applied in common practice. Under Art. III, § 2, of the Constitution, extending the judicial power of the United States "to all cases of admiralty and maritime jurisdiction," and Art. I, § 8, conferring on Congress power to make all laws which may be necessary and proper for executing the powers vested in the general government or in any of its departments or officers, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. In the absence of controlling statutes, the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction. The power of the States to change, modify or affect the general maritime law, while existing to some extent under the Constitution and the Judiciary Act of 1789, § 9, Judicial Code, §§ 24, 256, may not contravene the essential purposes of an act of Congress, work material prejudice to the characteristic features of the general maritime law or interfere with the proper harmony and uniformity of that law in its international and interstate relations. Work performed by a stevedore on board a ship in unloading her at wharf in navigable waters is maritime; his employment for such work and injuries suffered in it are likewise maritime, and the rights and liabilities arising from such work, employment and injuries are clearly within the admiralty jurisdiction. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52.

A stevedore engaged on an interstate ship in unloading her at wharf in navigable waters in New York was accidentally injured and killed, and an award of compensation was made against the shipowner by the New York Workmen's Compensation Commission under the New York Workmen's Compensation Act (New York Central R. R. Co. v. White, 243 U. S. 188), and affirmed by the courts of that State. Held, that the act as applied to such a case was in conflict with the Constitution and to that extent invalid. The remedy of the New York Workmen's Compensation Act (it provides compensation upon a prescribed scale for injuries and deaths of employees, without regard to fault, to be administered and awarded primarily through a state administrative commission), is a remedy unknown to the common law and incapable of enforcement by the ordinary processes of any court, and hence is not among the common-law remedies which are saved to suitors from the exclusive admiralty jurisdiction by Judiciary Act of 1789, § 9; Judicial Code, §§ 24, 256.

« ForrigeFortsett »