A state workmen's compensation act may be made to apply to injuries received in interstate commerce so far as they are not provided for by the Federal act, or the state is not forbidden by Congress to provide for such injuries. So that, Congress having in no way legislated in regard to interstate commerce by water, the state has a right to enact laws incidentally affecting such commerce. Stoll v. Pacific S. S. Co. (1913) 205 Fed. 169, 3 N. C. C. A. 606, approved in Kennerson v. Thames Towboat Co. ante, 436.

And the Federal employers' liability act, applying to carriers by railroad only, does not apply to injuries received upon a steamboat operated by an interstate railroad, but not related to its rail transportation. Jensen v. Southern P. Co. ante, 403.

Nor does it apply to a railroad company whose sole relation to the employee is as a lessee of a canal on which the said employee worked for wages paid by the railroad company. Hammill v. Pennsylvania R. Co. (1915) N. J. L. 94 Atl. 313.

There is a sharp conflict of authority between the courts upon the question whether or not the state compensation act applies to injuries of employees of interstate carriers by rail, where the injuries were received while the employee was himself engaged in furthering interstate commerce.

The decision in STALEY V. ILLINOIS C. R. Co. very clearly expresses the position of those courts which hold that the state acts cannot in any case apply to injuries of employees of interstate carriers by rail, where the employee when injured was himself furthering interstate commerce, although the injury may not have been caused by the negligence of the employer, and consequently no recovery could be had under the Federal act.

Several decisions of the California court are to the same effect. Thus, the California compensation act does not cover the case of a special watchman employed by a railroad company, who after driving trespassers off an interstate train, dismounted from the train and started to pursue the men in order to drive them from the company's property, and was injured by the explosion of a cartridge in his revolver, which had fallen on the ground. Smith v. Industrial Acci. Commission (1915) 26 Cal. App. 560, 147 Pac. 601. After quoting from the decision of the United States Supreme Court in Michigan C. R. Co. v. Vreeland (1913) 227 U. S. 59, 57 L.

ed. 417, 33 Sup. Ct. Rep. 192, Ann. Cas. 1914C, 176, the court said: "The express declaration in these decisions that the Federal statute has taken hold of the entire subject of the liability of a common carrier engaged in interstate business, to its employees for accidental injuries suffered by the latter while performing their duties, makes it unnecessary to digest those decisions approving the operation of the state statutes where the national legislation is not of such a character as to indicate that Congress intended to cover the whole field. There are such decisions, and they give expression to the general rule that a state statute enacted under the right of the reserve power is not to be set aside or overridden by the law of Congress, unless there is an actual repugnance. these decisions recognize the alternative condition that such state statutes will be thus overridden where Congress has manifested a purpose to exercise its paramount authority over the subject." So, in Southern P. Co. v. Pillsbury (1915) — Cal. —, L.R.A.-, 151 Pac. 277, the supreme court of California annulled an award of the Industrial Accident Commission upon the ground that the employee was at the time of the injury "engaged in interstate commerce within the meaning of the Federal act." In this case it does not appear in the opinion whether or not the plaintiff's injury was caused, or was alleged to have been caused, by the negligence of the railroad company.

But

In Young v. Duncan (1914) 218 Mass. 346, 106 N. E. 1, the court said that the Massachusetts act probably did not embrace employees subject to the Federal employers' liability act.

On the other hand, the New Jersey court has held that the Federal employers' liability act does not prevent the applicability of the New Jersey workmen's compensation act in the case of an injury to a brakeman on an interstate train, since the two acts deal with entirely separate matters. Rounsaville v. Central R. Co. (1915) — N. J. L. —, 94 Atl. 392.

So, it has been held that the fact that a deceased workman was engaged in furthering interstate commerce at the time of his death does not prevent his dependents from recovering compensation under the New Jersey act. West Jersey Trust Co. v. Philadelphia & R. R. Co. (1915) — N. J. L., 95 Atl. 753.

In neither of the above cases is it shown whether the injury was caused by the negligence of the employer or not.

The Federal employers' liability act

in cases where the state acts attempted to impose a liability for negligence.

One of the main grounds for upholding the constitutionality of the compulsory statutes is that they cover the entire field of the liability of employers for injuries to employees, and that, while they impose additional burdens on some employers, they relieve those employers and all others from the danger of suit for damages. However, under the decisions of the New York, New Jersey, and Connecticut courts, an interstate carrier by rail, although he may have paid his contribution into the insurance fund, or become insured in some other way, is not freed from other liability, but is

WISCONSIN SUPREME COURT.

CITY OF MILWAUKEE, Appt.,

V.

HENRY MILLER et al., Respts.

(154 Wis. 652, 144 N. W. 188.)

Master and servant

workmen's compensation · burden on consumer. 1. An employee, in the course of his service, received an injury to a great toe. Without notice to the employer of his needing medical and surgical treatment, and desiring to have such employer furnish the same, the employee procured such treatment, lasting ninety days. Notice was not given the employer at any time, except that the employee claimed compensation for his loss. Thereafter the former tendered the

latter services of a competent physician and surgeon, but the latter chose to continue to be treated by the person of his choice, who was assisted by the employee's niece. She voluntarily, and without promise or expectation of compensation, acted as nurse. In due course the Industrial Commission awarded reparation for the loss, including $222, for medical and surgical treatment, and $32 for services of the nurse. Principles of §§ 2394—1-2394–71, Stats. 1911 (workmen's compensation act), apply as follows: By the logic of the workmen's compensation act personal injuries to employees are a natural element in the cost of production, and are necessarily paid by the consumers of the things produced. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. Same

burden on public.

2. The workmen's compensation act is to minimize personal injury, distress, and loss,

Headnotes by MARSHALL, J.

Note. For annotation on the workmen's compensation acts, see post, 23.

subject to a suit for damages in case the injury has happened because of his negligence. From the same point of view the employer is not freed from other obligations where the injury was of such a character that his property may be proceeded against in admiralty. Thus, if the above named courts are correct in saying that the compensation laws apply notwithstanding the employee is within the provisions of the Federal employers' liability act, or if the case is one in which admiralty has jurisdiction, it would seem that one of the strongest grounds for upholding the constitutionality of the statutes is removed. W. M. G.

3. 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 remedied, the aspirations evidently intended to be embodied in the enactment, and the effects and consequences as regards responding to the prevailing conception of the necessities of public welfare, should be broad and liberal meaning as can be fairly considered and the enactment given such read therefrom so far as required to effectively eradicate the mischiefs it was inFor other cases, see Statutes, II. a, in Dig.

tended to obviate.

1-52 N. S.

workmen's comcost of production.

Master and servant pensation

4. Proper administration of the workmen's compensation act requires appreciation of the manifest legislative purpose to abolish the common-law system regarding injuries to employees as unsuitable to modern conditions and conceptions of moral obligations, and erect in place thereof one based on the highest present conception of man's humanity to man and obligations to members of the employee class,-one recognizing every personal loss to an employee, not self-inflicted, as necessarily entering into the cost of production, and required to be liquidated in the steps ending with conFor other cases, see Master and Servant, II. sumption. a, 1, in Dig. 1-52 N. S.

logic and makeweights formerly supposed to justify penalizing employers as wrongdoers, to the ultimate expense of consumers, should not be allowed to play any part; but the directly responsible party should be regarded as standing for the aggregate of consumers and joining with the injured person in submitting to the sound judgment of impartial administrators the question of how much, under all the circumstances, by legislative standards, should the public be burdened as a reparation to such person or his dependents for his or their loss. For other cases, see Damages, III. i, in Dig.

1-52 N. S.

Same

surgical aid.

6. The amount allowed for reasonable expenses of medical and surgical treatment should be the fair value of the service as such, neither more nor less because of the employer being liable therefor.

For other cases, see Damages, III. i, in Dig. 1-52 N. S.

Same right to disregard.

8. The reasonableness of an employee's claimed expenses reasonably incurred for medical and surgical treatment being disputed by credible evidence, and not supported other than by opinion evidence of the person most interested, the trial tribunal should apply ordinary common sense and experience to the matter, not being bound or necessarily efficiently influenced by the verification by such interested one, and fix the allowable amount at such sum as appears to it to be reasonable; and where the claim is obviously exorbitant, should not allow it, in the whole, regardless of how strongly supported by evidence from the mouth of the interested party. For other cases, see Evidence, XII. k, in Dig. 1-52 N. S. Master and servant

workmen's compensation right of employer to select physician.

9. The right of the employer under the workmen's compensation act to furnish reasonably necessary medical and surgical treatment, and the provision creating liability to the employee for reasonable expense incurred by him, or in his behalf, in that regard, in case of the former unreasonably neglecting or refusing to make the proper provision, by necessary implication reserves to the employer, under ordinary circumstances, reasonable opportunity to exercise the privilege, and renders competency of the employee to obtain such treatment, or for the same to be obtained in his behalf, at the expense of the employer, contingent

12. Competency of an injured employee to procure medical and surgical treatment, or for such to be procured in his behalf, at the expense of the employer, under the workmen's compensation act, exists for the reasonable time after the injury required for such employee to afford the employer opportunity to exercise his privilege; it is such privilege, but revives and relates back then suspended if the employer exercises to the time of suspension, if necessary, if fuses to exercise such privilege. the employer unreasonably neglects or re

For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S.

13. The legislative idea in the workmen's compensation act is that an employer is so specially interested in his injured employee being restored as soon as practicable, as to be most likely to provide proper medical and surgical treatment, and the letter and spirit of the law require that such beneficial and manifestly economic phase of the enactment should be given its intended dignity.

For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S.

Same duty to discover injury.

14. The law does not cast upon employers the duty of active vigilance to discover cases of personal injury to their employees, but casts upon the latter such vigilance as they can reasonably exercise to bring such injuries to the attention of employers, with

their need and desire for medical and sur

gical treatment to be provided. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S. Same expenses of nurse.

15. Expense for service of a nurse, as such, is not allowable against the employer for the period of ninety days after the injury, or at all during such period, except as a part of reasonably necessary medical