other cars as a step or link in their transportation to various destinations within and without the state. The question to be determined was whether, upon the facts recited, the intestate at the time of his fatal injury was employed in interstate commerce within the meaning of the federal act. The United States Supreme Court, after declaring that under the power confided to Congress by the commerce clause of the Constitution, the liability of an interstate carrier for injuries suffered by a member of the crew in the course of his general work was subject to regulations by Congress, whether the particular service being performed at the time of the injury, isolatedly considered, was in interstate or intrastate commerce, then pointed out that Congress had not exercised this power to the full extent authorized, but had only regulated the liability of the carrier to its employee while the latter was employed by such carrier in interstate commerce. In other words, that by the language employed in the federal statute it was clear that Congress intended to confine its action solely to injuries occurring when the particular service in which the employee was engaged was a part of interstate commerce. Having thus declared the scope of the statute, the court then held that the plaintiff's intestate, having been engaged at the time of his fatal injury in moving cars all loaded with intrastate freight from one part of the city to another, was not then employed in interstate commerce, and that consequently the injury and resulting death were not within the federal statute. This case, we think, controls the one now before us. Congress has not imposed upon the carrier liability to the employee merely because the general work of the latter involves both interstate and intrastate commerce. The test is whether the particular work upon which the employee was engaged at the very time of the accident was a part of the interstate commerce in which the carrier was engaged. The fundamental question to be now decided, therefore, is whether the engine upon which the decedent had just finished his work, or that upon which he was about to commence his work, was either of them, intended to be presently used in interstate or in intrastate commerce. If in the former, the carrier's liability is to be determined solely under the federal statute; if in the latter, then the state statute applies. As we have already pointed out, there is absolutely no testimony whatever upon this vital point. This being so, neither the judgment of the common pleas nor that of the Supreme Court has any foundation of fact upon which to rest. The burden was upon the petitioner in the court of first instance to prove a case within the state statute, that is, to show affirmatively, that the plaintiff's decedent was engaged in a service which was not regulated by the federal statute, for that fact is not to be presumed in the absence of proof.

The judgment of the Supreme Court, reversing that of the common pleas and remitting the record to that court to be proceeded with according to law, was therefore proper. Upon

receiving the record, however, the court of common pleas should proceed to retry the case along the lines indicated in this opinion rather than under the rule declared by the Supreme Court. The judgment will be affirmed.

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

D. V. G. MFG. CO.

V.

SORRENTINO. (No. 92.)*

1. WORKMEN'S COMPENSATION-AWARD.

In a workmen's compensation case the judge of the pleas must, as the result of the hearing had before him, make a determination of every factor that, under the statute, enters into the award of compensation.

2. WORKMEN'S COMPENSATION ACT-PARTIAL PERMANENT DISABILITY.

The compensation for two or more permanent partial disabilities is to be awarded upon the principles laid down in the case of Orlando v. Ferguson, 102 Atl. 155.

Williams, J., dissenting.

Appeal from Supreme Court.

Proceeding for compensation under the Workmen's Compensation Act by Jerry Sorrentino against the D. V. G. Manufacturing Company. From a judgment of the Supreme Court, affirming the judgment of the common pleas, awarding compensation, the employer appeals. Reversed, and proceeding remanded to the common pleas.

Kalisch & Kalisch, of Newark, for appellant.
Weller & Lichtenstein, of Hoboken, for apellee.

The

GARRISON, J. This is a workman's compensation case. petitioner had suffered a fracture of the skull running into the orbit of the right eye causing shock, injury to the brain, and the loss of the eye. The common pleas determined that the petitioner was entitled to compensation for three disabilities: First a temporary disability; second, a partial permanent disability by the loss of the eye; and, third, a partial permanent disability from the injury to the brain. As to none of these disabilities was the compensation definitely fixed by the judgment of the pleas. For the temporary disability the rate of payment was fixed, but not the time it was to run, which was "during the said temporary *Decision rendered, March 4, 1918. 103 Atl. Rep 190. Syllabus by the Court.

disability"; for the loss of the eye the number of weeks and the rate of payment were fixed, but not the date when they began to run, which was "when the temporary disability had ceased"; for the permanent disability to the brain neither rate, date, nor period was fixed, their determination being indefinitely postponed until after "the termination of the temporary disability."

[1] This judgment is erroneous in two respects: The common pleas after hearing the case ought to have determined every factor upon which, under the statute, the award of compensation depended. The statute is explicit that at the hearing the judge shall "in a summary manner decide the merits of the controversy." Pamphlet L. 1911, p. 143, § 20. There is not the slightest foundation for the idea that the determination of any of the factors that enter into such decision can be put over to some indefinite period or to await some uncertain event. To the same effect is the provision of the next succeeding section by which each party in every case is given the right to apply for a review of the award which assumes that in every case an award has been made and gives a remedy that would otherwise be meaningless.

The statutory scheme in the respect under consideration was passed upon in the case of Feldman v. Braunstein, 87 N. J. Law, 20, 93 Atl. 679, although the case in other respects was different. "It is for the court, under the statute," said Mr. Justice Swayze, "to determine the compensation, and the court can act only on the facts before it, not upon the uncertain possibilities of the future. The proper course was to deal with the case exactly as it stood at the time. * * * " (The rest of the sentence deals with the particular facts of that case.)

The case must go back to the pleas for a new determination and judgment.

[2] The other error arose from the failure of the pleas to apply to the two permanent partial disabilities the principles laid down by this court in the case of Orlando v. Ferguson 102 Atl. 155, the opinion in which was not filed until after the judgment of the pleas in the present case was rendered.

The judgment of the Supreme Court is reversed to the end that the proceedings be remanded to the common pleas for a judgment based upon a determination made in accordance with the foregoing principles either upon the present evidence or upon such additional testimony as may be put in.

Williams, J., dissents.

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

COON
V.

KENNEDY. (No. 104.)*

WORKMEN'S COMPENSATION-FEDERAL JUDICIAL CODESAVING CLAUSE.

The amendment of October 6, 1917, to the Federal Judicial Code (Act Cong. March 3, 1911, c. 231, § 24, cl. 3, and section 256, cl. 3, 36 Stat. 1091, 1160. as amended by Act. Cong. Oct. 6, 1917, c. 97, 40 Stat. 395) saving to claimants the rights and remedies under the Workmen's Compensation Acts of any state, is prospective, and does not validate a compensation action begun in a state court before its passage and which at the time of such passage the state court had no jurisdiction to entertain.

Appeal from Supreme Court.

Proceedings by Rebecca Coon for compensation under the Workmen's Compensation Act, opposed by James Kennedy. Judgment for defendant, and petitioner appeals. Affirmed.

James D. Carpenter, Jr., of Jersey City, for appellant.
Isidor Kalisch, of Newark, for appellee.

PARKER, J. We concur in the result reached by the Supreme Court that the federal jurisdiction over the case presented was exclusive, and for the reasons given in the opinion of that court.

It is argued here that an amendment of sections 24 and 256 of the federal Judicial Code, which amendment was approved October 6, 1917, by the President of the United States and became a law upon such approval, operates to save the jurisdiction of the court of common pleas to deal with this case as a workmen's compensation case. To this we do not agree. The fatal accident occurred on August 4, 1915. The proceeding in the common pleas was instituted March 24, 1916, and the determination of that court filed on June 17, 1916. The certiorari was argued in the Supreme Court at the February term, 1917, and decided in the June term of that year; just when does not appear, except that the rule for reversal was signed October 20, 1917. The position of appellant necessarily must be that the federal amendment which took effect October 6, 1917, is retroactive to the extent of supporting a claim of workmen's compensation based on an accident which occurred over two years before its enactment and which claim our courts had no jurisdiction to entertain up to within a few days before the reversal on that ground in our Supreme Court. In view of the accepted rule that

*Decision rendered, March 4, 1918. 103 Atl. Rep. 207. Syllabus by the Court.

statutes are to be construed as prospective in their operation unless there is a clearly expressed legislative intent to the contrary (Frelinghuysen v. Morristown, 77 N. J. Law, 493, 72 Atl. 2; In re St. Michael's Church, 76 N. J. Eq. 524-532, 74 Atl. 491), there should be some legislative declaration indicating the intent of Congress that actions previously begun in the state courts without jurisdiction are to acquire a status therein if still pending. We find no such intent even intimated. Section 24 of the Judicial Code in its original form began by providing that "the district courts shall have original jurisdiction as follows," and in clause 3 mentioned civil cases of admiralty and maritime jurisdiction saving common-law remedies. Section 256 provided that the jurisdiction of the federal courts should be exclusive of that of the state courts, inter alia, in cases of admiralty and maritime jurisdiction, saving common-law remedies. The amendment of October 6, 1917, re-enacted these clauses, adding to the saving clause in each place the words "and [saving] to claimants the rights and remedies under the workmen's compensation law of any state." This indicates, at the most, no more than an intent to confer the particular jurisdiction on state courts to entertain compensation cases thereafter begun, but it is very far from providing that extrajurisdictional actions are to acquire a status if not theretofore terminated.

The judgment will be affirmed.

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

MOUNTAIN ICE CO.

V.

MCNEIL ET AL. (No. 76.)*

1. WORKMEN'S COMPENSATION-PLAY OR SKYLARKING— NOTICE TO OFFICERS.

Because the skylarking of boys employed in a plant came under the observation of the president and superintendent of the employing company, those officers were thereby charged with contemplating no more than that the same thing might occur again; that is, skylarking or horseplay, not that one boy might thereafter commit an atrocious assault upon the other.

2. WORKMEN'S COMPENSATION-ACCIDENT "ARISING OUT OF AND IN COURSE OF EMPLOYMENT."

The Workmen's Compensation Act (Act April 4, 1911 [P. L. 134]) does not provide an insurance for a workman against every happening * Decision rendered, March 7, 1918. 103 Atl. Rep. 184. Syllabus by the Court.