ing, with such force that the driver was thrown therefrom to the pavement and so injured that he died shortly after.

Section 8229, G. S. 1913, reads as follows:

"That where an injury or death for which compensation is payable under part 2 of this act is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of this act, the employee in case of injury or his dependents in case of his death, may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under part 2 of this act, but not against both.

"If the employee in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which and the persons to whom the same are payable, shall be as provided for in part 2 of this act and not otherwise: Provided that in no case shall such party be liable to any person other than the employee or his dependents for any damages growing out of or resulting from such injury or death.

"If the employee or his dependents shall elect to receive compensation from the employer, then the latter shall be subrogated to the right of the employee or his dependents to recover against such other party, and may bring legal proceedings against such party and recover the aggregate amount of compensation payable by him to such employee, or his dependents hereunder, together with the costs and disbursements of such action and reasonable attorney's fees expended by him therein."

It is contended on behalf of the plaintiff that he is entitled to recover from the defendant company, under the act, the amount which he was required to pay to decedent's dependents, regardless of whether it was guilty of negligence contributing to the accident. The statute provides that, where an injury or death is caused for which compensation is payable, under such circumstances as to create a liability for damages on the part of any party other than the employer, who is also subject to the provisions of part 2 of the act, the employee or his dependents, as the case may be, may proceed, either at law against such other party than the employer to recover damages, or against the employer for compensation, but not against both, clearly distinguishing between the meaning of the terms "compensation" and "damages." It is also provided that, if the employee or his dependents bring an action for the recovery of damages against such other party, the amount thereof and manner in which and the persons to whom paid shall be as provided in part 2 of the act, and that in no case shall such third party be liable to any party other than the employee or his dependnts for any such damages. The act provides that, if the employee or his dependents elect to receive compensation from the employer, then the latter shall be subrogated to the rights of the employee or his dependents to recover against such other party, and bring legal proceedings to recover the aggregate amount of such compensation.

The language is susceptible of but one meaning. It speaks for itself. The phrase "legal liability for damages," we think, has reference to common-law liability. The act does not take from the employee or his dependents the common-law right of recovery against the defendant company, if it was negligent. The case McGarvey v. Independent Oil & Grease Co., 156 Wis. 580, 146 N. W. 895, is in point. In that case the Supreme Court of Wisconsin, in speaking of this very subject, says:

"It is conceded, as the fact is, that in case of an employee, in the course of his employment, being injured by the actionable negligence of a third person, a statutory remedy accrues to him for compensation, against

Vol. IV-Comp. 33.

his employer, and a common-law remedy against such third person, though he cannot have but one satisfaction."

The jury found that there was no negligence on the part of the defendant. There being no negligence, there was no common-law right of action. The verdict is supported by the evidence.

Affirmed.

SUPREME COURT OF MINNESOTA.

SODERSTROM

V.

CURRY & WHYTE, INC. (No 21235)*

1. ADMIRALTY-WORKMEN'S COMPENSATION LAW—INJURY

IN MARITIME TORTS.

One employed by a shipper of pulpwood to load it on a vessel while moored on navigable waters at a dock in a port in this state, to be transported to a port in another state, is engaged in work of a maritime nature, and, if injured while so employed, does not come within the scope of the Workmen's Compensation Law of this state (Gen. St. 1913, §§ 8195-8230).

For other cases, see Admiralty, Dec. Dig. § 20.)

2. ADMIRALTY-INJURY TO LABORERS LOADING A VESSEL -RECOVERY AT COMMON LAW.

One thus employed, if injured by reason of the actionable negligence of his employer, is not limited to the relief to which seamen are entitled under the rules of admiralty, but may recover the full damages to which he would be entitled at common-law.

(For other cases, see Admiralty, Dec. Dig. § 2.)

3. ADMIRALTY-WORKMEN'S

COMPENSATION

LAW-EX

TENSION TO MARITIME WORK-RETROACTIVE EFFECT. The amendment to the federal Judicial Code (Act March 3, 1911, c. 231, §§ 24, cl. 3, 256, cl. 3, 36 Stat. 1091, 1161) of October 6, 1917 (Act Oct. 6, 1917, c. 97, 40 Stat. 395 [U. S. Comp. St. §§ 991 (3), 1233]), which extends the rights and remedies afforded by the Workmen's Compensation Laws of the several states to persons injured while employed in work of a maritime nature, will not be given a retroactive effect.

(For other cases, see Admiralty, Dec Dig. 20.)

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge. Action by Victor Soderstrom against Curry & Whyte, Incorporated. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Washburn, Bailey & Mitchell, of Duluth, for appellant.

Andrew Nelson and John G. Cedergren, both of Duluth, for respondent.

*Decision rendered, June 27, 1919. 173 N. W. Rep. 649. Syllabus by the Court.

LEES, C. Appeal from an order overruling a demurrer to the complaint. The demurrer was based on two grounds; the first, that the court had no jurisdiction of the subject of the action, and the second, that the complaint failed to state a cause of action. The court certified that the questions presented were important and doubtful. A condensed statement of the facts alleged follows:

Defendant is a Minnesota corporation dealing in and shipping pulpwood. It owns a dock at Two Harbors, in this state, on the navigable waters of that port, from which pulpwood is loaded into the holds of vessels plying on the Great Lakes. On July 2, 1917, plaintiff was a common laborer employed by defendant to convey pulpwood from the dock and tow it in the hold of the steamer Orien, to be transported to another state. Fourteen men were engaged in this work, plaintiffs station being in the old steamer. The pulpwood was carried in dump cars to spouts extended from the dock to hatches in the deck of the steamer and was dumped from the cars through the spouts into the hold. The men in the hold could not see the cars dumped, nor could the men dumping them see those working below, and there were no means of communication between them. It was the custom to dump the cars in regular order, beginning with the hatch nearest the bow and running back to the stern. The work was in charge of a foreman stationed on the deck. While plaintiff was working under one of the hatches, the contents of a car were dumped out of the customary order and he was caught under the pulpwood and seriously injured. In support of the demurrer, defendant contends: (1) That plaintiff's sole remedy is under the Minnesota Workmen's Compensation Act. (2) That, even though it should be held that he was employed under a maritime contract, the complaint fails to state a cause of action based on a maritime right. (3) That the amendment to the federal Judicial Code (Act March 3, 1911, c. 231, §§ 24, cl. 3, 256, cl. 3, 36 Stat. 1091, 1161) of October 6, 1917 (Act Oct. 6, 1917, c. 97, 40 Stat. 395[U. S. Comp. St. §§ 991 (3), 1233]), definitely relegates him to relief under the Compensation Act.

Consideration of the arguments upon which the case was submitted and examination of the authorities cited in the memorandum, which the learned trial court made part of the order overruling the demurrer, together with those cited in the briefs, have led us to the conclusion that the questions were correctly decided in the court below. We will briefly indicate our views upon them.

[1] 1. Lindstrom v. Mutual Steamship Co., 132 Minn. 328, 156 N. W. 669, L. R. A 1916D, 935, would be conclusive authority for defendant, but for the fact that a year after that case was decided the Supreme Court of the United States, in So. Pac. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, held that a state's Workmen's Compensation Law cannot be extended to work of a maritime nature, because Congress has paramount power to fix and determine the maritime law of the land, and injuries sustained by one engaged in maritime work are within the admiralty jurisdiction. Since then the states have uniformly held, so far as we are aware, that the compensation laws do not apply to workmen injured while engaged in maritime work. Doey v. Howland, 224 N. Y. 30, 120 N. E. 53; Duart v. Simmons, 231 Mass. 313, 121 N. E. 10; Georgia Casualty Co. v. Am. Milling Co. (Wis.) 172 N. W. 148; Veasey v. Peters, 142 La. 1012, 77 South, 948.

[2] 2. In The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, rules were formulated applicable to all maritime contracts of employment. One of them was thus stated:

"That the seaman is not allowed to recover an idemnity for the negligence of the master, or any membr of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident."

Counsel have referred to this as the "limited liability" rule and it is earnestly contended that this case falls within its scope, and that plaintiff was limited in admiralty to a claim for maintenance and cure. If this is true, the complaint states no cause of action, bcause it is framed on an entirely different theory of legal liability. We are of the opinion that the contention cannot be sustained Plaintiff was not a seaman and was not in the service of a ship. Read v. Canfield, 1 Sumn. 195, 11 Fed. Cas. No. 11,641; The John B. Lyon (D. C.) 33 Fed. 184; The J. P. Schuh (D. C.) 223 Fed. 455; The Chicago (D. C.)235 Fed. 538; The Buena Ventura (D. C.) 243 Fed. 797. We are unable to see why the question is not disposed of contrary to the defendant's contention in Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A (N. S.) 1157. In that case the man injured was a stevedore engaged in loading a ship and sought to recover from the owner of the ship and stevedore company by whom he was employed. The libel was dismissed as to the shipowner and a recovery of general damages allowed against the employer. The right to such recovery was affirmed on appeal. If Imbrovek had been a seaman, or in the service of a ship, he could not have recovered only under the limited liability rule stated in the Osceola Case.

Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L Ed. 1171, does not change the effect of the decision in the Imbrovek Case, for the reason that the injury involved was sustained by a fireman on board a ship while at sea, and obviously the rule stated in the Osceola Case was applicable.

The reasons for the limited liability rule are clearly set forth in the noted opinion of Judge Story in Harden v. Gordon, 2 Mason, 541, Fed. Cas. No. 6,047. Men employed on shipboard are peculiarly liable to sickness and accidents from exhausting labor, change of climate, and exposure to perils. Public policy requires their preservation for the commercial service and maritime defense of the nation, and so the master of the ship must care for them while disabled through sickness or accident, and the costs thereof must be borne by the ship. None of these reasons apply to men living on shore and employed at ports where ships receive and discharge their cargoes or undergo repairs. Plaintiff was not in the service of the ship when injured, was not exposed to any of the hazards referred to by Judge Story, and should not be held to come within the special rule applicable to seamen. At first blush it seems far-fetched to hold that plaintiff was working under a maritime contract of employment; but such is the clear result of the decisions in the Imbrovek and Jensen Cases, for there, as here, the men injured were laborers employed solely to assist in loading or unloading a ship.

The further point is made that in admiralty full compensation for injuries caused by a failure to provide a workman on board ship with a safe place in which to work is never given unless the ship was unseaworthy or there was a failure to supply and keep in order the appliances appurtenant to it. We think this point is ruled against defendant by Atlantic Trans. Co. v. Imbrovek, supra, where, in affirming the decision of the lower court, it was said:

"The remaining question relates to the finding of negligence. * * * Both courts below, however, concurred in the finding that the petitioner omitted to use proper diligence to provide a safe place of work.

* * * It is sufficient to say that we are satisñed from an examination of the record that the ruling was justified.”

To the same effect are Siebert v. Patapsco Co. (D. C.) 253 Fed. 685; The Satilla, 235 Fed 58, 148 C. C. A. 552; The Themistoccles, 235 Fed. 81, 148 C. C. A. 575.

[3] 3. Congress appears to have been dissatisfied with the effect of the decision in the Jensen Case, for a few months after it was de

cided, it amended the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087), which theretofore saved to suitors only the common-law remedies which the common law is competent to give, by expressly providing that claimants should also have the rights and remedies which the Workmen's Compensation Laws of any state afford. This amendment furnishes the basis of defendant's third contention. The Jensen Case was decided May 21, 1917. Plaintiff was injured July 2, 1917, and the amendment was passed October 6, 1917. It is contended that the amendment should be given a retroactive effect and that plaintiff is therefore limited to recourse to the compensation law of this state. Veasey v. Peters, supra, sustains the contention. Apparently that case was decided on the theory that the amendment affected only the remedies which were available to plaintiff, who was injured prior to its passage. The holding could not be justified on any other ground. Either this view of the effect of the amendment was not presented for consideration in the cases decided by the courts of last resort of other states, or, if presented, it has not met with favor, for in none of them, so far as we have discovered, has it been even mentioned. There is great difficulty in assenting to the view that only remedial rights are affected by the amendment. In our judgment it goes farther and affects the substantive rights of the parties to whom it applies. Under the law as it stood on July 2, 1917, plaintiff had a cause of action at common law upon the facts stated in its complaint. He might recover full compensation for impaired earning capacity, loss of wages, pain suffered, and the expense of medical treatment. Under the Compensation Law, his right of recovery was much more restricted. The former right of recovery could not be taken away from him by legislation enacted after he was injured. The Compensation Law is not an amendment of the common law. It established new obligations between employers and employees and went far beyond mere changes in the remedies theretofore open to workmen injured by reason of negligence for which their employers were legally liable. Duart v. Simmons, supra.

It was held by the Circuit Court of Appeals for the Ninth Circuit that the Arizona Compensation Act had no application to the case of a workman injured prior to its enactment. Arizona, etc., Ry. Co. v. Clark, 207 Fed. 817, 125 C. C. A. 305, and the decision was affirmed in 235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834, though on other grounds.

This court has held that the right to compensation is governed by the law in force at the date of the death of a workman and not by a subsequent amendment thereto. State v. District Court, 132 Minn. 249, 156 N. W. 120, and, inferentially, that substantive rights arise under the act and become fixed as of the date of the injury or death. State v. Gen. Accident, etc., Corporation, 134 Minn. 21, 158 N. W. 715, Ann. Cas. 1918B, 615. A

"The distinction between rights and remedies is fundamental. right is a well-founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury." Chelentis v. Luckenbach, supra.

The learned trial court was right in overruling the demurrer, and the order appealed from is affirmed.