where she accepts compensation from the employer, her right against a third party passes to the employer and any excess recovered by him under such right against a third party must be held for the benefit of the widow as the right of action is indivisible and belongs to two persons, and in case the employer refuses to join as a plaintiff he may be made a defendant.50 The bringing of an action by the widow of the deceased, his administratrix, against the negligent third party to recover damages under How. Ann. St. Mich. 1912, Par. 13702-3, was held not to amount to a waiver of her right to claim compensation from the employer under the workmen's compensation act, despite St. 1919, Par. 2394-25, Subd. 2.51 Mere negotiations with a third party does not constitute a claim precluding the injured party from claiming compensation from the employer, since a claim under the statute means a demand of some matter of right made by one person upon another to do or to forbear to do some act or thing as a matter of duty.52 It has been held in Michigan that where an employee may proceed against either his employer or a third person and he files suit against the third person and later petitions for compensation, the action at law will abate.53 Under the Federal Act, where an employee proceeds against a third party and recovers, the commission is entitled to have the amount recovered, less court costs and reasonable attorneys fees, credited against the award under the act; and the employee may recover the difference from the commission.54 Where a suit against a third party would be futile, compensa. tion will be allowed under the Federal Act.5t 55 Ore., (1921). 50. Rorvik v. N. Pac. Lbr. Co., 195 Pac. 163, 842. 53. -, 180 N. W. 826. Wis. -, (1921), 180 N. W. Barbon v, Gladwin Light & Power Co.-Mich., 167 N. W. 1024, 2 W. C. L. J. 302. 54. In re Wm. E. Davis, 2nd A. R. U. S. C. C. 234; In re Fay F. Leslie, 2nd A. R. U. S. C. C. 235; In re Solomon Schubert, 2nd A. R. U. S. C. C. 235; In re Chas. W. Poinsett, 2nd A. R. U. S. C. C. 235. 55. In re Wm. E. Davis, 2nd A. R. U. S. C. C. 236; In re L. B. Ashton, Where the vice president of a corporation causes injury to an employee of the corporation such vice president is a "person other than the employer" within the compensation act and therefore the employee is entitled to elect against whom he shall proceed.56 It is held under the Federal Act that where the recovery against a third party is more than the amount due from the commission, the excess will be credited to the commission in lieu of any future claim which may be made for other injuries to the claimant.57 Damages to claimant's watch collected from a third party was held to be a proper credit against the amount due from the Federal Commission.58 Under the Louisiana Act the employer is subrogated to all rights, of the employee against a third party causing the injury, and a claimed right of subrogation to the injured employee by the third party upon payment of the claim to the employee will not avail the third party anything.59 A third party causing injury to an employee cannot affect the employer's right of subrogation to the extent of the compensation awarded, by settling with the employee without the employer's consent.60 § 46. Cases Exclusively Covered by Federal Law.-Cases exclusively covered by any federal law, are as a rule expressly or impliedly excluded from the operation of the compensation acts by special provisions of the acts. While such cases would be ex 2nd A. R. U. S. C. C. 237; In re Jeremiah S. Irish, 2nd A. R U. S. C. C. 237. 56. Webster v. Stewart,-Mich.-, (1920), 177 N. W. 230, 6 W. C. L. J. 63. 57. In re James M. Ferreebee, 2nd A. R. U. S. C. C. 238. McClintic Marshall Co. v. Oleary, La. -, (1920). 84 So. 503, 6 W. cluded regardless of such provisions, it nevertheless becomes a matter of importance to determine what cases, otherwise within the provisions of the acts are exclusively covered by federal law. On May 17, 1917, the Supreme Court of the United States handed down a decision to the effect that the State Compensation Acts do not apply in any event to interstate employees on railroads, as the Federal Employers' Liability Act of 1908 as amended in 1910 (Section 8657-8665 United States Compiled Statutes 1916, page 9338), affords the exclusive remedy in such cases. The following quotation from the opinion in that case is pertinent and throws much light on this subject concerning which there has been considerable controversy. "It is settled that under the commerce clause of the Constitution, Congress 61 61. N. Y. Cent. R. R. Co. v. Winfield, 244 U. S. 147, 37 Supp. 546, 61 L. Ed. 1045 Ann. Cas. 1917D, 1139; rev'g Winfield v. N. Y. Cen. R. R. Co., 216 N. Y. 284, 110 N. E. 614, 10 N. C. C. A. 916: Winfield v. Erie R. R. Co., 88 N. J. Law 619, 96 Atl. 394, 37 Sup. Ct. Rep. 556, A 1 W. C. L. J. 41, and affirming the doctrine of Smith v. Ind. Acc. Com. of Cal., 26 Cal. App. 560, 147 Pac. 600; Staley v. Ill. Cen. R. R. Co., 268 Ill. 356, 109 N. E. 342; Matney v. Bush, 102 Kan. 293, 169 Pac. 1150, 1 W. C. L. J. 617; Walker v. Chicago etc. R. R. Co., (Ind. App) 117 N. E. 969, 1 W. C. L. J. 362; See also, Rounsaville v. Cen. Railroad, 90 N. J. Law 176, 101 Atl. 182, reversing judgment 87 N. J. L. 371, 94 Atl. 392; McKenna v. N. Y. Cent. R. Co., 202 Mich. 103, 167 N. W. 900, 2 W. C. L. J. 300; Miller v. Grand Trunk Western R. Co., 201 Mich. 72, 166 N. W. 833, 1 W. C. L. J. 1021; Crecilius v. Chic. etc. R. Co., (Mo.) 205 S. W. 181, 2 W. C. L. J. 809; The Erie Lighter (D. C.) 250 Fed. 490, 2 W. C. L. J. 606; Erie R. Co. v. Downs, (C. C. A.), 250 Fed. 415, 2 W. C. L. J. 599; Ill. Cent. R. Co. v. Ind. Bd., 284 Ill 2667, 119 N. E. 920, 2 W. C. L. J. 444; See Brinsko's Estate v. Lehigh Valley R. Co., 90 N. J. L. 658, 102 Atl. 390, 1 W. C. L. J. 431. For a complete discussion of all cases on this subject prior to the above decision of the Supreme Court see L. R. A. 1916A, (note), 461; also 9 N. C. C. A. note 286-307, 6 N. C. C. A. (note) 920-933, 10 N. C. C. A. (note) 916-925; Kinsellaco v. N. Y. Cent. R. Co., 175 N. Y. S. 363, 186 A. D. 856, 4 W. C. L. J. 134; Reilly v. Erie Ry. Co., 264 Penn. 329, 107 Atl. 736, 4 W. C. L. J. 639; N. Y. Cent. R. R. Co. v. Porter, 249 U. S. 168; Phil. & R. Ry. Co. v. Hancock, 40 Sup. Ct. 512, 6 W. C. L. J. 247; Williams v. Schaff, Mo., (1920), 222 S. W. 412, 6 W. C. L. J. 346; Wangerbro v. Indus. Bd., · Ill. - 121 N. E. 724, 3 W. C. L. J. 439; Erie R. Co. v. Krysienski, 238 Fed. 142, A 1 W. C. L. J. 59; Tandrum v. Western A. R. Ga., 90 S. E. 710, A 1 W. C. L. J. 298; Savon v. Erie Ry. Co., - N. Y. App. Co., - 116 N. E. 983, B 1 W. C. L. J. 205. may regulate the obligation of common carriers and the rights. of their employees arising out of injuries sustained by the latter where both are engaged in interstate commerce; and it also is settled that when Congress acts upon the subject all State laws covering the same field are necessarily superseded by reason of the supremacy of the national authority. Congress acted upon the subject in passing the Employer's Liability Act, and the extent to which that act covers the field is the point in controversy. By one side it is said that the act, although regulating the liability or obligation of the carrier and the right of the employee where the injury results in whole or in part from negligence attributable to the carrier, does not cover injuries occurring without such negligence, and therefore leaves that class of injuries to be dealt with by State laws; and by the other side it is said that the Act covers both classes of injuries and is exclusive as to both. The State decisions upon the point are conflicting. The New York court in the present case and the New Jersey court in Winfield v. Erie R. R. Co., 88 N. J. Law 619, hold that the Act relates only to injuries resulting from negligence, while the California court in Smith v. Industrial Accident Commission, 26 Cal. App. 560, and the Illinois court in Staley v. Illinois Central R. R. Co., 268 Ill. 356, hold that it has a broader scope and makes negligence a test-not of the applicability of the Act, but of the carrier's duty or obligation to respond pecuniarily for the injury. In our opinion the latter view is right and the other wrong. *** The Act is entitled, 'An Act relating to the liability of common carriers by railroad to their employees in certain cases,' and the suggestion is made that the words 'in certain cases' require the Act be restrictively construed. But we think these words are intended to do no more than to bring the title into reasonable accord with the body of the Act, which discloses in exact terms that it is not to embrace all cases of injury to the employees of such carriers, but only such as occur while the carrier is engaging and the employee is employed in 'commerce between any of the several States,' etc. See Employers' Liability Cases, 207 U. S. 463. "Only by disturbing the uniformity which the Act is designed to secure and by departing from the principle which it is intended to enforce can the several States require such carriers to compensate their employees for injuries in interstate commerce occurring without negligence. But no State is at liberty thus to interfere with the operation of a law of Congress. As before indicated, it is a mistake to suppose that injuries occurring without negligence are not reached or affected by the Act, for, as is said in Prigg v. Pennsylvania, 16 Pet. 539, 617, 'if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the State legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it.' Thus the Act is as comprehensive of injuries occurring without negligence, as to which class it impliedly excludes liability, as it is of those as to which it imposes liability. In other words, it is a regulation of the carrier's duty or obligation as to both. And the reasons which operate to prevent the states from dispensing with compensation where the Act requires it equally prevent them from requiring compensation where the Act witholds or excludes it." It has been held that where a street car company is both an intrastate and an interstate carrier an employee injured while operating a car confined to intrastate traffic is not coverel by the Federal Employers Liability Act.62 This act refers to interstate commerce, and if the employee at the time of the injury is engaged in interstate transportation, or in work so closely related thereto as to be practically a part thereof, then he must resort to his remedy, if any, under this act, and is not entitled to benefits under the State Workmen's Compensation Act. Construction work was 63 62. Watts v. Ohio Valley Elec. Ry. Co., 78 W. Va. 144, 88 S. E. 659. 63. Ill. Cent. R. Co., v. Ind. Bd. 284 Ill. 267, 119 N. E. 920, 2 W. C. L. J. 444; Vollmers v. N. Y. Cent. R. Co., 180 App. Div, 60, 167 N. Y. S. 426, 1 |