SUPREME COURT OF WASHINGTON. NELSON INDUSTRIAL INSURANCE DEPARTMENT. (No. 14543.)* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EVIDENCE--SUFFICIENCY. In a proceeding for compensation under Workmen's Compensation Act, evidence heid to sustain a judgment that the loss of eyesight was caused by the accident complained of, and not by a pre-existing diseased condition. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— FEES OF EXPERT WITNESSES. In a proceeding under Workmen's Compensation Act, the allowance of $45 to an expert medical witness was not justified under Rem. Code 1915, § 6604-20, authorizing the court to allow fees of medical and other witnesses out of the administration fund. (For other cases, see Master and Servant, Dec. Dig. § 420.) Department 2. Appeal from Superior Court, Clarke County; R. H. Bach, Judge. Proceedings under the Workmen's Compensation Act (Laws 1911, p. 345) by N. E. Nelson. From an order of the Industrial Insurance Department, granting an award as for permanent partial disability, the Insurance Department appeals. Modified and affirmed. W. V. Tanner, of Olympia, and Howard Waterman, for appellant. Henry Crass, of Vancouver, for respondent. CHADWICK, J. This case comes to us on appeal from a judgment of the superior court overruling an order of the Industrial Insurance Department, granting respondent an allowance for permanent partial disability. Respondent was injured in an accident on a logging railroad. He claims the loss of the sight of one eye. The court made findings as follows: "That prior to the accident plaintiff's eyesight was good, and he was not afflicted with optic atrophy. "That at the time of the injury plaintiff complained of severe pain in his head over the left eye, which pains continued for some time, and to a certain degree up to the time of the trial. "That shortly after the injury, the sight of the left eye began to fail and decrease rapidly, and at the time of the trial plaintiff was practically blind in the left eye. "That shortly before the accident plaintiff could use one eye as well as the other, and there was no difference in the sight of either. total loss of vision in the left eye." That as a result of the injury, plaintiff has sustained the practical The physicians called in behalf of the department testify positively that the loss of the sight of respondent's eye could not have resulted from Decision rendered, Nov. 20, 1918. 176 Pac. Rep. 15. * the injury received in the accident; that respondent is suffering from a primary optic atrophy; that primary atrophy is not due to inflammatory processes, nor is it the result of an injury; that if there has been an atrophy of the optic nerve due to such causes it is called secondary atrophy; that it is likely that respondent, being afflicted with true or primary optic atrophy was not aware of his condition, which must have existed for some time before the accident although not discovered until after he had been injured. On the other hand, professional men testifying on behalf of respondent advance the opinion that there may have been some injury of the optic nerve; that it is almost impossible to make a positive diagnosis in a case like this; that no one can say definitely whether an atrophy of the optic nerve is prmary or secondary, without considering the history of the case, and that there is no specific rule to positively determine what has caused the condition. One of the doctors suggests that the learned discourse about primary and secondary atrophy is "dictionary definition pure and simple," and that the term "primary atrophy" is often used for convenience to cover ignorance of the true causes. doctors, as is sometimes the case, have disagreed. Their opinions cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade, that up to the time of the accident he used either eye as convenience dictated, and that there had been no trouble with or diminution of his vision. A neighbor testified that about a year before the accident he was with respondent when he was shooting hogs and that he could shoot from one shoulder as well as the other, and that he never complained about his eyesight. The [1] One of the first inquiries made by oculists in cases of atrophy of the optic nerve is whether the patient has ever been afflicted with lues or any germ-carrying disease. There is no evidence that respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident is enough to sustain the judgment of the court below. [2] The trial judge allowed a fee of $45 to one of the medical witnesses who came from Portland, Or., to attend the trial. It is the contention of respondent that this allowance is proper under Rem. Code, § 6604-20, which provides that the court may allow an attorney's fee, "and the fees of medical and other witnesses and the costs shall be payable out of the administration fund, if the accident fund is affected by the litigation." There is no provision of the law that will warrant the payment of extraordinary fees to expert witnesses as such. It was formerly provided in section 25 of the original act of 1911 (Laws 1911, p. 371) that "Upon the appeal of any workman from any decision of the department affecting the extent of his injuries or the progress of the same, the court may appoint not to exceed three physicians to examine the physical condition of the appellant, who shall make to the court their report thereon, and they may be interrogated before the court by or on behalf of the appellant in relation to the same. The fee of each shall be fixed by the court but shall not exceed ten dollars per day each." This section was expressly repealed by section 10, c. 188, Laws 1915, at which session of the Legislature it was provided "that fees of medical and other witnesses and the costs shall be payable out of the administration fund." We think it is hardly within any rule of statutory construction to say that it was the intention of the Legislature to leave the fixing of witness fees to the discretion of the court. "At common law costs were not recoverable eo nomine. * Costs can therefore be recovered only in cases where there is statutory authority therefor." 15 C. J. 21. "It is settled in this state that costs are purely statutory, and can only be awarded when the statute gives them." Eggerth v. Spokane, 91 Wash. 221, 157 Pac. 859. [3] Being dependent upon the statute, costs and witness fees are never to be allowed in the discretion of the trial judge, in the absence of a positive or permissive statute. In re Queen, 82 N. J. Eq. 588, 89 Atl. 860; Struthers v. Christal, 3 Daly, 327; Wallace v. Sheldon et al., 56 Neb. 55, 76 N. W. 418. So it is held that "Sums paid for compensation of expert witnesses beyond ordinary fess authorized by statute for witnesses generally are not taxable as costs." 15 C. J. 131; 5 Standard Encl. Proc. 951. It will be observed that the only discretion given to the court in the allowance of costs on appeal from an order of the department, is that the trial judge may fix a resonable attorney's fee and "such [reasonable] fee, and the fees of medical and other witnesses shall be payable" etc., plainly indicating that it was the intent of the Legislature to associate medical witnesses with "other witnesses" and not with the attorney whose service is independent of the witnesses, and for which no fee is provided by law. We have heretofore refused to extend the terms of this statute by construction. O'Brien v. Industrial Insurance Department, 171 Pac. 1018. It follows that the judgment of the lower court should be modified to this extent. In all other respects it is affirmed. Main, C. J., and Holcomb, Mount, and Mackintosh, JJ., concur. SUPREME COURT OF WASHINGTON. SPOKANE & I. E. RY. CO. ET AL. ข. WILSON ET AL., INDUSTRIAL INSURANCE COMMISSION. MASTER AND SERVANT-STATUTES-CONSTRUCTION-EMPLOYEES ENGAGED IN INTERSTATE COMMERCE. Under Workmen's Compensation Act, § 18, as amended by Laws 1917, 96, exempting railroads which do an interstate business, employee of railroad doing interstate business, though the bulk of its business is intrastate, is not entitied to compensation, but can recover only in accordance with the latter part of the above amendment, which enacts within the state the provisions of the federal Employers' Liability Act. (For other cases, see Master and Servant, Dec. Dig. § 365.) Tolman and Fullerton, JJ., dissenting. En Banc. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge. Three actions by the Spokane & Inland Empire Railway Company, by the Yakima Valley Transportation Company, and by the Washington *Decision rendered, Nov. 19, 1918. 176 Pac. Rep. 34. Vol. III-Comp. 14. Industrial Insurance Commission. From the judgment rendered, plaintiffs appeal. Decree directed for plaintiffs. Richard & Fontaine, of North Yakima, and Post, Russell, Carey & Higgins and Graves, Kizer & Graves, all of Spokane, for appellants. W. V. Tanner, of Olympia, and John A. Homer, of Seattle, for respondents. MAIN, C. J. These three actions against the Industrial Insurance Commission, where the appellants seek to be excluded from the operation of the Workmen's Compensation Act (Laws 1911, p. 345), all call for the interpretation of the amendment to section 18 thereof contained in Session Laws 1917, p. 96, which reads as follows: "Inasmuch as it has proved impossible in the case of employees engaged in maintenance and operation of railways doing interstate, foreign and interstate commerce, and in maintenance and construction of their equipment, to separate and distinguish the connection of such employees with interstate or foreign commerce from their connection with intrastate commerce, and such employees have, in fact, received no compensation under this act, the provisions of this act shall not apply to work performed in the maintenance and operation of such railroads or performed in the maintenance or construction of their equipment, or to the employees engaged therein, but nothing herein shall be construed as excluding from the operation of this act railroad construction work, or the employees engaged thereon: Provided, however, that common carriers by railroad engaged in such interstate or foreign commerce and in intrastate commerce shall, in all cases where liability does not exist under the laws of the United States, be liable in damages to any person suffering injury while employed by such carrier, or in case of the death of such employee to his surviving wife and child or children, * * * then to the parents, sisters, or minor brothers, residents of the United States at the time of such death and who were dependent upon such deceased for support, to the same extent and subject to the same limitations as the liability now existing or hereafter created, by the laws of the United States governing recoveries by railroad employees injured while engaged in interstate commerce." 1. The Spokane & Inland Empire Railway Company operates an electric system of railways consisting of street car lines in Spokane and suburban and interurban lines into Spokane, two of the interurban lines extending into the state of Idaho. The company also operates an electric power plant on the Spokane river. All of these operations are under one control and are conducted as a whole. The interurban railway lines constitute the greater portion of the company's business. The number of employees on the interurban and street car lines cannot be segregated, since the street car lines are combined with suburban lines in so far as the operation of cars, the repair shops, and the care of tracks are concerned. The power generated by the power department is used principally for railroad purposes, from 15 per cent. to 25 per cent. being sold commercially. The power sold is what is known as "surplus" power, which is available only when the river is at its higher stages. There is no segregation of expenses in the power department between that required to generate the power used for railroad purposes and that sold commercially, nor is there any segregation possible with respect to the power used for the movement of interstate and intrastate traffic. The urban cars carry no interstate traffic, but interstate trains run and interstate traffic is carried over all portions of the street car lines. 2. The Washington Water Power Company operates an electric car system in and about the city of Spokane, which system consists of twenty routes, all of them except one being operated exclusively for the carrying of passengers in and about the city of Spokane. On one line operating principally for the carriage of passengers wholly within this state, the cars carry mail coming from and destined to points outside of the state. In addition to the urban routes, the company operates two branch interurban railways extending from Spokane to Cheney wholly within the state. This interurban line is used in addition to carrying interstate passengers and freight in carrying express, freight, and mail, some of which is transported in continuous passage between points on the interurban line and points in other states, the tracks being physically connected with the tracks of the Northern Pacific Railway, the Great Northern Railway, the Spokane, etc., Ry., the Ohio River & Western Railway, and the Chicago, Milwaukee & St. Paul Railway, so that it is possible to interchange cars between the interurban tracks and the tracks of these connecting interstate carriers. The tracks of the interurban line are also physically connected with the plaintiffs' urban tracks in the city of Spokane, and cars operated in the interurban service use many of the urban tracks within the city. The company also operates electric power plants located on the Spokane river, in the state of Idaho, and at Spokane, Long Lake, and Little Falls, in the state of Washington. The power generated is used in the operation of the urban car system, in the operation of the interurban lines, furnishing light to the city of Spokane, and for supplying numerous cities and towns in Washington and Idaho with power and light, and for general commercial purposes. The entire business is conducted under one management, and to separate and distinguish the employees engaged in interstate commerce from those engaged in intrastate commerce would be nearly impossible. 3. The Yakima Valley Transportation Company operates an urban and interurban railroad system in and about the city of Yakima. The tracks of the company are physically connected with the Ohio River & Western and the Northern Pacific Railways tracks, and receive from those interstate carriers freight in carload lots; 90 per cent of the freight handled by the company being interstate business. One system of tracks is used for both urban and interurban service, and cars engaged in carrying city passengers and transporting interstate passengers and cars transporting freight, mail, and express in interstate commerce pass over the tracks alternately one with the other. Freight is received at all points on the company's line, and through bills of lading are issued to all points in the United States and Canada. Freight is billed from points outside of the state to points on the company's lines and received and delivered at its stations on through bills of lading. The same employees are engaged in maintaining the tracks used in all service performed by the company; the car shops and car barns are used in both classes of service; the same working on the equipment used in interstate and intrastate business. The executive officers and office employees perform services without regard to whether the business they are engaged upon is interstate or intraThe operators of the cars are engaged part of the time on one class and part of the time on the other class of service. men state. When the Workmen's Compensation Act was passed in 1911, it was anticipated that there had been substituted for the common-law liability of employers a sure and certain compensation for all railroad employees except those who come within the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 86578665]). Under the operation of the law, however, it became apparent that, as stated in the amendment of 1917, a great deal of confusion arose in cases of employees engaged upon railroads doing both interstate and intrastate business. From the statement of the business engaged in by the three companies involved in these suits, it is apparent that great numhers of employees are engaged in work so impossible of segregation, as to whether it is at any given time interstate or intrastate, that the question of whether they came within the state law or the federal law is im |