by the Washington statute authorizing a materialman's lien condemned in The Roanoke. The Legislature exceeded its authority in attempting to extend the statute under consideration to conditions like those here disclosed. So applied, it conflicts with the Constitution and to that extent is invalid.

"Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the federal District Courts, 'saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.' The remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction. The Hine, 4 Wall. 571, 572 [18 L. Ed. 451]; The Belfast, 7 Wall. 624, 644 [19 L. Ed. 244]; Steamboat Co. v. Chace, 16 Wall. 522, 531, 533 [21 L. Ed. 369]; The Glide, 167 U. S. 606, 623 [17 Sup. Ct. 930, 42 L. Ed. 296]. And finally this remedy is not consistent with the policy of Congress to encourage investments in ships manifested in the acts of 1851 and 1884 (R. S. 4283, 4285 [U. S. Comp. St. 1916, §§ 8021, 8023]; Section 18, Act of June 26, 1884, 23 Stat. 57, c. 121 [U. S. Comp. St. 1916 § 8028]), which declare a limitation upon the liability of their owners. Richardson v. Harmon, 222 U. S. 96, 104, 32 Sup. Ct. 27, 56 L. Ed. 110.

"The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion."

The suit of plaintiff is a civil action in personam, having a maritime origin, of which the courts of admiralty have exclusive jurisdiction, "saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it." But, as it is not a suit for damages, which was known as a common-law right or remedy for injuries received, at the time of the adoption of the Constitution or the original judiciary act, in 1789, the state cannot interpose its power and give to the plaintiff a cause of action, maritime in its nature, which did not exist in his favor at that time.

The exception of no right or cause of action is sustained; the judgment appealed from is annulled, avoided, and reversed; and this suit is dismissed at plaintiff's costs.

O'NEILL, J., dissents.

On Rehearing.

LECHE, J. [4] Viewing the question of law upon which this case was decided, with the additional light shed upon it by reargument of counsel, we have, after mature consideration, reached the conclusion that our former decree is erroneous.

That decree rests entirely upon the interpretation which we placed upon the cases of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900, and

Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157.

It must be observed that the statute of this state, under which plaintiff has founded his demand is not one giving redress for torts. The fundamental idea of the Employers' Liability Act is to provide means of subsistence to the employé during a specific time, when his earning capacity has been either partially or entirely destroyed, either temporarily or permanently, by injury received in the course of his employment, whether that injury be caused by his negligence, that of his fellow servant, or that of his employer. The right to compensation on the part of the employé does not therefore depend upon the commission of a tort towards him by his employer, and it may arise when the employer is neither negligent nor at fault. It also follows that defendants' liability, if they are liable, is purely statutory and it is neither the result of a tort nor of a contract.

In the Jensen Case, libelant was endeavoring to fasten this statutory liability upon a ship which is generally subject to the admiralty jurisdiction of the United States courts, while in the present suit plaintiff seeks to enforce liability upon a citizen of this state who is subject to the jurisdiction of its courts and whose business is not necessarily of a maritime nature.

In the Imbrovek Case, it was held that the occupation of stowing goods in the hold of a ship was maritime in its nature because on the proper performance of that duty depend in large measure the safe carrying of the cargo and the safety of the ship itself. In the present case the occupation of plaintiff was to unload the ship, and that could have no possible relation to the safety of the ship or its navigation. Nor does the decision in the Imbrovek Case rest upon the question of the locality where the injury was inflicted; but, on the contrary, the Supreme Court seems rather to support its conclusions on the fact that in that case the employment was maritime in its nature.

It thus appears that the present suit may reasonably be distinguished from the two cases upon which we based our original opinion. But even if it be conceded that plaintiff was engaged in a maritime occupation when he was injured, since the rendition. of our former decree and since the Imbrovek and Jensen Cases were decided by the United States Supreme Court, Congress has amended that section of the Judicial Code fixing the jurisdiction of the United States District Courts, sitting in admiralty, so as to exclude from their jurisdiction claims under the Workmen's Compensation Law of any state. The amended clause as adopted and approved October 6, 1917 (Act Cong. Act. 6, 1917, c. 97, 40 Stat. 395) now reads as follows:

"Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to

claimants the rights and remedies under the Workman's Compensation Law of any state."

It thus appears that defendants are in a dilemma. If plaintiff's occupation was maritime in character, the amendment to the judicial Code saves him the proper remedy; if it is not maritime, then the Imbrovek and Jensen Cases do not apply to his cause of action.

Defendants in argument suggest that retroactive effect should not be given to the above-quoted paragraph of the statute, but, being remedial in its nature, there is nothing in the Constitution to prevent such effect from being given to it. Bass v. Y. & M. V. R. R. Co., 136 La. 528, 69 South, 355; Morgan's L. & T. R. R. & S. S. Co. v. Railroad Commission of La., 138 La. 377, 70 South 332.

On the merits, the defense is that plaintiff was intoxicated at the time he was injured and that his injury was the result of such intoxication. The preponderance of evidence is against that contention, and we fully agree with the district judge in his findings.

Our former decree is set aside, and it is now ordered that the judgment appealed from be affirmed at defendants' costs.

PROVOSTY, J., concurs on ground that act of Congress confers jurisdiction.

SOMMERVILLE and O'NEILL, JJ., concur in decree.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

MIDDLESEX.

WAHLBERG

V.

BOWEN ET AL.*

1. WORKMEN'S COMPENSATION-NEGLIGENCE OF THIRD PERSON-ELECTION TO PROCEED UNDER WORKMEN'S COMPENSATION ACT.

That a servant injured in the course of his employment by negligence of a third person did not pay the hospital to which he was taken for the the first two weeks, for which time he was entitled to treatment under Workmen's Compensation Act, § 15 (St. 1911, c. 751, pt. 3) as amended by St. 1913, c. 448, § 1, but paid for the time thereafter, is not evidence that he elected to proceed for compensation under that act. where he did not refuse to pay for the services, had never been asked to pay for them, and it did not appear that the hospital ever regarded him as responsible therefor or that he knew that either his employers or their insurers were to pay such charges, or that they had been charged to his employers; it *Decision rendered, Feb. 26, 1918. 118 N. E. Rep. 645.

expressly appearing the services were not rendered on behalf of the insurer or charged to it.

2. WORKMEN'S COMPENSATION - ELECTION TO CLAIM UNDER WORKMEN'S COMPENSATION ACT.

That a servant injured in his employment by the negligence of persons other than his employers knew what his rights were under the Workmen's Compensation Act as to free treatment when he was taken to the hospital to which his employers' injured servants were taken did not bar his recovery against the persons who caused his injury, on the theory that he had elected to receive compensation under the act, unless the evidence showed that the hospital service was furnished under the act, and that the servant indicated he had exercised his option to obtain compensation thereunder.

Exceptions from Superior Court, Middlesex County; William Cushing Waite, Judge.

Action by Alex Wahlberg against Cornelius F. Bowen and others. There was a verdict for defendants, and plaintiff excepts. Exceptions sustained.

H. R. Bygrave and G. E. Kimball, both of Boston, for plaintiff. Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for defendants.

CROSBY. J. This is an action to recover for personal injuries received by the plaintiff while in the employ of Dickson & Turnbull, a firm that was engaged in setting stone at the Widener Memorial Library in Cambridge. The defendants were teamsters whose teams delivered the stone to be set, and the plaintiff was injured while assisting the defendants' driver, at his request, in backing the driver's team.

The plaintiff contended that his injuries were caused by the negligence of the driver; while it was the contention of the defendants that the driver was not negligent, that the accident was due to the negligence of the plaintiff, and that he was a volunteer. The defendants also contended that the plaintiff had elected to recover compensation from the insurer of his employers under the Workmen's Compensation Act (St. 1911, c. 751, pt. 3, § 15, as amended by St. 1913, c. 448, § 1), and therefore could not maintain this action against the defendants.

The presiding judge, subject to the exception of the plaintiff, submitted to the jury the question whether the plaintiff had elected to accept the benefits of the act. The plaintiff contended that there was no evidence of such an election.

In addition to certain money payments to which an injured employé is entitled under the Workmen's Compensation Act, it was provided, at the time the plaintiff was injured, that:

"During the first two weeks after the injury, the association shall furnish reasonable medical and hospital services, and medicines when they are needed." St. 1911, c. 751, pt. 2, § 5.

It was held in Panasuk's Case, 217 Mass. 589, 105 N. E. 368, that the medical and hospital services and medicines are a part of the compensation to which the employé is entitled.

Upon the question whether the plaintiff had elected to proceed under the act and had thereby lost his rights against the defendants, it appeared in evidence that the plaintiff's employers were insured under the Workmen's Compensation Act with the Frankfort General Insurance Company; that immediately after the accident the plaintiff was taken in an ambulance to the Cambridge Relief Hospital. The plaintiff testified that persons injured in the employ of Dickson & Turnbull were taken to that hospital. He was treated at the hospital for over nine weeks and paid all charges of the hospital except for the two weeks following the injury. He further testified that he knew what his rights were under the Workmen's Compensation Act; that he was visited about a week after he was hurt by representatives of the employers, and the defendants' insurer, and saw an attorney of his employers' insurer some time after the accident; that "somebody told him that he knew that he would get compensation, that is, he would get medical bills for two weeks and half his pay as long as he was laid up."

While it appears that the plaintiff's employers were insured under the act with the Frankfort General Insurance Company, it does not appear that the plaintiff knew that fact; he knew that persons injured in the employ of Dickson & Turnbull were taken to the Cambridge Relief Hospital, but he did not know who sent for the ambulance in which he was taken there; and it did not appear in evidence.

Although he paid all the hospital charges except for the first two weeks, there is nothing to show that the treatment for these weeks were charged to the insurer or that the accident was ever reported to it. On the other hand, there was undisputed evidence that services for the first two weeks were charged by the hospital to Dickson & Turnbull and had not been paid.

[1, 2] The fact that the plaintiff did not pay the hospital for services rendered him during the first two weeks is not evidence that he elected to proceed under the act; he did not refuse to pay for these services, he has never been asked to pay for them, and it does not appear that the hospital authorities ever regarded him as responsible therefor, or that he knew that either the employer or the insurer was to pay such charges, or that they had been charged to his employer. On the other hand it expressly appears that the services were not rendered on behalf of the insurer or charged to it. It may be conceded that he knew what his rights were under the act-he so testified; still such knowledge would not be a bar to recovery in this action, unless the evidence shows that the service was furnished under the Workmen's Compensation Act, and that he did something or so acted as to indicate that he had exercised his option to obtain compensation thereunder.

As there is no evidence to indicate an election by the plaintiff, it was error to submit that question to the jury for their determination. And as the verdict for the defendants may have been