port in question as evidence cannot be sustained. Our conclusion in this regard finds support in the case of Rock v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. The act of the state of Michigan under which this case was decided provides, as does section 67 of the Workmen's Compensation Act of this state, that every employer shall keep a record of all injuries "received by his employees in the course of their employment." A question arose in the case just cited, as it did in the instant case, with reference to the admission of the accident report of the employer in evidence, and the court in passing on such question said:

"We think that such reports from the employer, where all sources of information are at hand when the reports are made, and he has ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, prima facie evidence that such accident and injury occurred as reported."

No evidence was offered to impeach the report so made, or to show that the accident occurred otherwise than stated therein. Considering the evidence as a whole, with all reasonable inference deducible from the facts established thereby, we are forced to the conclusion that the finding of facts is supported by the evidence, and the award fully justified by the facts found.

The award is therefore affirmed, and by virtue of the act of March 5, 1917 (Acts 1917, p. 155), the amount thereof is increased 5 per cent.

APPELLATE COURT OF INDIANA.
DIVISION NO. 2.

NATIONAL CAR COUPLER CO.

V.

MARR ET AL. (No. 10367.)*

1. MASTER AND SERVANT-COMPENSATION FOR INJURIES— EMPLOYMENT.

Where a deceased workman was tapping in a bolt in a sand machine when he fell into the machine and was killed, held that, though he violated instructions, the accident cannot be deemed one which did not arise cut of the employment, so as to preclude an award of compensation by the Industrial Commission; the violation of instructions going to the question of willful misconduct.

(For other cases, see Master and Servant, Dec. Dig. § 380).

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— DEFENSES-ABANDONMENT.

Where an employer against whom the dependents of a deceased employee sought an award abandoned the second paragraph of its answer setting up willful misconduct, that defense was waived.

(For other cases, see Master and Servant, Dec. Dig. § 401.)

Appeal from Industrial Board.

Application by Viola E. Marr and others, as dependents of Thomas Marr, deceased, for an award against the National Car Coupler Company * Decision rendered, Jan. 23, 1919 121 N. E. Rep. 545.

for injuries resulting in death arising out of employement. From an award of compensation, by the Industrial Board, defendant appeals. Affirmed.

Joseph W. Hutchinson, of Indianapolis, for appellant.
J. W. Whicker, of Attica, for appellees.

DAUSMAN, C. J. Appellees, as dependents of one Thomas Marr, deceased, filed their application for an award against appellant. Appellant answered in two paragraphs: (1) General denial; and (2) averring willful misconduct. The Industrial Board awarded compensation. The nature of the case is fully disclosed by the following statement of facts included in the finding made by the board:

"On the 2d day of January, 1918, one Thomas Marr was in the cmployment of the defendant company as a sand mixer at an average weekly wage of $17.37. On said date the said Thomas Marr was making an adjustment upon the sand mixer machine, which it was his duty to assist in operating. While making said adjustment, the said Thomas Marr accidentally fell into said machine, which was in motion at the time. By falling in said machine, the said Thomas Marr was instantly crushed to death."

Appellant abandoned its second paragraph of answer, and the only contention presented is that the workman's death did not arise out of the employment. This contention is based on the theory that the superintendent of the plant had given the workman certain instructions which were violated by the latter, that the effect of the instructions was to limit the scope of the employment, and that the violation of the instructions by the workman put him entirely outside the employment.

one.

The superintendent testified:

* *

* * *

*

* * *

"I gave him the instructions to be careful around machinery; not to make any alterations until he stopped the machine. I cautioned him several times about being careful around machinery. * * He hadbeen working on sand mixers prior to the time he began working on this * I have told him many a time that, if he had anything to fix to report it to the mechanics. Some men have tapped in bolts that depends somewhat on where the bolt is. It would depend on the man whether it would be a dangerous operation for a man to stand where Mr. Marr is said to have been standing, stooping over, facing the revolving pan. I could do it, I think, and not get hurt. He (Marr) looked after the machine and every man on the machine; and, if there were any lost bolts that he or any other man noticed, it would be his duty to have it fixed."

[1,2] The uncontroverted evidence discloses that the workman was "tapping in" a bolt when he fell into the machine; but it would be illogical to hold that his death did not arise out of the employment, even if it should be conceded that he violated the instructions. The insistence that he violated instructions has no bearing on that point. It goes rather to the question of willful misconduct. But we may not even intimate an opinion as to what it would be worth in that direction, for appellant has waived it by expressly abandoning its second paragraph of answer.

The award is affirmed, and by virtue of the statute (Laws 1915, c. 106) the amount thereof is increased 5 per cent.

SUPREME COURT OF IOWA.

DES MOINES UNION RY. CO.

V.

FUNK, INDUSTRIAL COM'R, ET AL (No. 31300.)*

1. COMMERCE-WORKMEN'S COMPENSATION ACT-INTERSTATE COMMERCE.

All controversies touching liability of railroad company engaged in interstate commerce to its employees likewise engaged are removed by federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) from sphere of state legislation, and commission provided for in Workmen's Compensation Act has no jurisdiction of case of injury while engaged in

interstate commerce.

(For other cases, see Commerce, Dec. Dig. § 8[6].)

2. MASTER AND

SERVANT-TESTING

POWER OF BOARD UNDER COMPENSATION ACT-INADEQUATE REMEDY BY APPEAL.

Under Code 1897, § 4154, railroad company against which board of arbitration appointed under Workmen's Compensation Act had made award in favor. of widow of deceased servant, killed in interstate commerce, held entitled to certiorari to test right of board to act; remedy by appeal after confirmation of award by district court not being plain, speedy, or adequate.

(For other cases, see Master and Servant, Dec. Dig. § 417[3].)

Appeal from District Court, Polk County; Lawrence De Graff, Judge. Certiorari to test the right of a commission appointed under the Workmen's Compensation Act to hear and determine the liability of a railroad company to its employee when the injury arose at a time when both were engaged in interstate commerce. Opinion on rehearing, superseding former opinion (164 N. W. 648). Reversed.

Parrish & Cohen, of Des Moines, for appellant.

Miller & Wallingford and Oliver H. Miller, all of Des Moines, for appellees.

GAYNOR, J. Martin Walker was employed by the plaintiff company as a wheel borer in one of its shops at Des Moines, where, on the 25th day of August, 1915, he was accidentally caught upon a revolving shaft of certain machinery, receiving injuries from which he died. Prior to this accident both employer and employee had elected to accept the terms of the Workmen's Compensation Act (chapter 147 of the Laws of the ThirtyFifth General Assembly). Myrtle M. Walker, widow of the deceased, applied to the Industrial Commission, alleging that her husband came to his death by accident while in the course of his employment, and asking that her damage or compensation be assessed as provided by said act. A board of arbitration was organized and proceeded to hear the case. The plaintiff herein, as the employer of the deceased, appeared, and denied liability on the alleged grounds: First, that the deceased was not in the course of his employment at the time of his death; and, second, that his said employer, plaintiff herein, was at that time engaged in business as a * Decision rendered, Jan. 27, 1919. 170 N. W. Rep. 529.

common carrier of interstate commerce, and the employee (for whose death compensation was asked) was at the time of his death in the service of the company in and about such business.

The board of arbitration found that the deceased was in the course of his employment at the time of the accident, and that he was engaged in the work of interstate commerce. It also found that the widow's claim was just and recoverable, under the Compensation Act, and assessed the amount of her recovery. Thereafter the company (plaintiff herein) began this action in certiorari in the district court of Polk county, alleging that the Industrial Commissioner and the board of arbitration had exceeded their jurisdiction in that said company and the deceased were engaged in interstate commerce at the time of the accident, and that the whole remedy of the widow, if any she had, was under the statutes of the United States, or what is known as the Employers' Liability Act. Act Cong. April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. §§ 8657-8665.)

Upon these allegations a writ of certiorari was issued to the Industrial Commissioner and the widow of the deceased requiring a return to be made to the district court of the record of the proceedings had before said commissioner and the board of arbitration. Full return was made and certified to the district court in obedience to the writ, and upon the showing thus made the defendants moved to quash the writ and dismiss the certiorari proceedings because the defendant company had a plain, speedy, and adequate remedy at law by appeal. This motion was sustained, the proceedings dismissed, and the plaintiff appeals.

A determination of the controversy here requires the consideration of the following propositions:

First. Does the Workmen's Compensation Act provide for any appeal from the assessment of damages under the terms of the said act?

Second. If there be a right of appeal, is it exclusive, or may the jurisdiction of the commission and the board of arbitration in any given case be questioned and determined in a certiorari proceeding?

Third. Does the fact, if it be a fact, that the deceased was killed while employed in interstate commerce, bar his widow from the right to demand and receive the benefit of the Workmen's Compensation Act?

[1] We will consider the last proposition first: Is one entitled to invoke the said Workmen's Compensation Act when it is shown that both the employer and the employee were at the time of the injury engaged in interstate commerce?

For the purposes of this decision we assume that they were so engaged. The commission so found. There never has been any doubt among the courts that, when Congress acts upon a subject, all state laws covering the same field are necessarily. superseded by reason of the supremacy of the national authority. But there has been some controversy as to whether the federal Employers' Liability Act does cover injuries occurring without negligence. It has been the contention of some able counsel and is the holding of some of the state courts that the federal Employers' Liability Act covers or regulates the liability or obligation of carriers, and the right of the employee only for injury resulting in whole or in part from negligence, and does not cover injuries occurring without negligence. Following this line of reasoning, some of the courts have held that the state Workmen's Compensation Act could be invoked and relied upon, and relief given, in cases where the liability is not predicated on negligence, and the thought in the reasoning is that the federal Employers' Liability Act covers liability arising from the negligence of the carrier only. The Supreme Court of New Jersey, in Winfield v. Erie Ry. Co., 88 N. J. Law, 619, 96 Atl. 394, held that, where the federal act affords no remedy, that is, where the injury occurs under such circumstances that no liability is imposed upon the carrier by the act, the injured employee may invoke the remedy by the state statute, so it was said that, in order to defeat the right to invoke the state Workmen's Compensation

Act, it must affirmatively appear that right of action is given to the widow or personal representatives of the employee by the federal statute; in other words, that it must appear that the injury resulted in whole or in part from negligence chargeable to the defendant company, in order to bring it within the federal Employers' Liability Act. On this basis of reasoning that court held that the liability sought to be enforced was not a liability arising out of negligence, and therefore not covered by the federal Employers' Liability Act, but rested on a contractual obligation created by the state statute, consented to by both the employer and the employee, and said, in substance, that the injured party is entitled to invoke the state statute in the absence of any averment by her, or any proof offered, or any admission made by the defendant company, showing that the death of her decedent resulted from the defendant's negligence; that negligence is essential to create a liability against it under the federal

statute.

The New York court held to substantially the same doctrine in Winfield v. New York Central Ry. Co., 216 N. Y. 284, 110 N. E. 614, Ann. Cas. 1916A, 817. The California and Illinois Supreme Courts, however, held to a different doctrine. Smith v. Industrial Accident Commission, 26 Cal. App. 560, 147 Pac. 600; Stanley v. Illinois Central Ry. Co., 268 Ill. 356, 109 N. E. 342, L. R. A. 1916A, 450. In the last case it was said:

"The federal Employers' Liability Act has taken possession of-has occupied that field for the purpose of calling into play therein this exclusive power of the federal government. Necessarily all common or statute laws of this state on that subject has been superseded. The field of liability as to employees injured while engaged in interstate commerce on railroads is occupied exclusively by the federal Employers' Liability Act, and that, too, regardless of the negligence or lack of negligence of either party to the litigation."

Whatever controversy may have existed has not been set at rest by the decision of the Supreme Court of the United States, and the doctrine announced by the courts of California and Illinois has been approved. Winfield v. New York Central, heretofore cited, came to the Supreme Court of the United States, and is reported in 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918 C, 439, Ann. Cas. 1917D, 1139, and it was held that the doctrine announced by the Supreme Court of New York and New Jersey was wrong. It was said:

"True, the federal Employers' Liability Act does not require the carrier to respond for injuries occurring where it is not chargeable with negligence, but this is because Congress, in its discretion, acted upon the principle that compensation should be exacted from the carrier where, and only where, the injury results from negligence imputable to it. Every part of the act conforms to this principle, and no part points to any purpose to leave the states free to require compensation where the act withholds it. * * * * It was the intention of Congress to make negligence the basis of the employee's right to damages, and to exclude responsibility of the carrier to the employee for an injury not resulting from its negligence."

In Erie Ry. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, these questions were presented:

First. Whether the federal Employers' Liability Act is regulative of the carrier's liability or obligation in every instance of the injury or death of one of its employees in interstate commerce, or only in those instances where there is casual negligence for which the carrier is responsible.

Second. Whether by reason of the said statute (state Workmen's Compensation Act) the carrier became bound contractually to make compensation, even though it came within the federal act.

The disposition of the first question was. made by referring to what was said in New York Central Ry. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139, saying further: