UNITED STATES DISTRICT COURT.

W. D. WASHINGTON, N. D.

MARTIN
ບ.

KENNECOTT COPPER CORPORATION. (No. 3820.)*

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -SUPERSEDING COMMON-LAW REMEDIES,

Workmen's Compensation Act Alaska, §§ 7, 21, 22, supersedes the common law, and no action can be brought for injuries in any court, federal or otherwise, outside the territory of Alaska.

(For other cases, see Master and Servant, Dec. Dig. § 348.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION

-OPERATION.

The Alaska Workmen's Compensation Act enters into and becomes part of the contracts of employment in such territory as fully as though stipulated therein.

(For other cases, see Master and Servant, Dec. Dig. § 348.)

At Law. Action by Mike Martin against the Kennecott Copper Corporation. On motion by defendant to strike denials filed by plaintiff to the answer and for judgment on the pleadings. Motion granted.

John T. Casey, of Seattle, Wash., for plaintiff.

Bogle, Graves, Merritt & Bogle, of Seattle, Wash., for defendant.

NETERER, District Judge. The plaintiff seeks to recover from the defendant damages for injuries received while being employed in the mine of the defendant in Alaska, alleging negligence on the part of the defendant. The defendant answers with certain denials and admissions, and pleads affirmatively chapter 71, Session Laws of the Territorial Legislature of Alaska for the year 1915, commonly called the Workmen's compensation Act of Alaska, praying that the said law be declared the law of this case, and that by virtue of section 22 of said act the plaintiff be declared not entitled to maintain this action in this court, and that the same be dismissed. The plaintiff has filed a denial upon information and belief with relation to this act, and further states:

"That if said act was regularly passed, and is a valid and constitutional enactment, in whole or in part, and held to be the law of this case, plaintiff hereby elects to accept the compensation which a jury may award under the provisions of said compensation act."

A motion has been made to strike the several denials as insufficient and evasive, irrelevant, and immaterial, and for judgment upon the pleadings.

[1] I think the denials are insufficient, as the privilege granted must necessarily be subject to the limitation that acts presumably within the personal knowledge cannot be thus denied, nor is this privilege extended to denial of a matter of public record: 31 Cyc. pp. 200-202; Raymond v. Johnson, 17 Wash. 232, 49 Pac. 492, 61 Am. St. Rep. 908; Sumpter v. Burnham, 51 Wash. 599, 99 Pac. 752; Belknap Glass Co. v. Briwn, 69 * Decision rendered, July 11, 1918. 252 Fed. Rep. 207.

Wash. 127, 124 Pac. 390; Olympia v. Turpin, 70 Wash. 581, 127 Pac. 210; Canyon Lbr. Co. v. Sexton, 93 Wash. 620, 161 Pac. 841.

[2] Section 21 of the Alaska Workmen's Compensation Act provides that:

"Actions for the recovery of compensation due under this act may be brought, maintained and determined in and by the courts of this territory, and when so brought shall be governed by the law of procedure applicable to other actions for the recovery of money except as herein otherwise expressly provided."

Section 22 provides;

"No action for the recovery of compensation hereunder shall be brought in any court holden outside of the judicial division in which the injury occurred, out of which the right to compensation arises except in cases where service cannot be had on the employer in the judicial division where the injury occurred. Any attempt to bring such action in any court outside of the territory of Alaska shall work a forfeiture of the right of the plaintiff in such action to compensation under this act."

Section 7 of the act provides:

"The right to compensation for an injury and the remedy therefor granted by this act shall be in lieu of all rights and remedies as to such injury now existing either at common law or otherwise, and no rights or remedies, except those provided for by this act, shall accrue to employees entitled to compensation under this act while it is in effect. nor shall any right or remedy, except those provided for by this act, accrue to the personal or legal representative, dependents, beneficiaries under this act, or next of kin of such employee."

The Alaska statute, by express provision, supersedes the common law and by comprehensive provision covers the field of liability in this case. The plaintiff's right of recovery is statutory and the limitations of the parties are fixed by the act. The remedy provided for the omissions of duty charged in this case is dissimilar to that afforded by the common law, and recovery under the Alaska law cannot be enforced in this proceeding (Slater v. Mexican National Railroad Company, 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900), since the cause of action is made local by the express terms of the statute. The only source of liability is the law of Alaska, which determines the extent. Smith v. Condry, 1 How. 28, 11 L. Ed. 35. The action is not transitory, but local, and the forum is fixed, and the remedy may not be sought here. Southern Pac. Co. v. Dusablon, 48 Tex. Civ. App. 203, 106 S. W. 766.

[3] The act in issue has been sustained by the Circuit Court of Appeals of this circuit. Johnson v. Kennecott Copper Corp., 248 Fed. 407,

C. C. A. —. The provisions of the law enter into and become part of the contract of employment as fully as though stipulated therein. McCracken v. Hayward, 2 How, 608, 11 L. Ed. 397.

The motion of the defendant must therefore be granted.

SUPREME COURT OF ILLINOIS.

KENNA
ບ.

CALUMET, H. & S. E. R. CO. (No. 11807.)*

6. COMMERCE — FEDERAL EMPLOYERS' LIABILITY ACT – WORKMEN'S COMPENSATION ACT.

The Federal Safety Appliance Act excludes the application of the Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) in all cases in which the former act is applicable, as Congress having entered upon the field of regulation, the paramount character of its authority excludes state regulation on the subject.

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

11. TRIAL · FEDERAL SAFETY APPLIANCE ACT INSTRUCTIONS.

In a switchman's action for personal injury, with counts under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) and the federal Safety Appliance Act in respect to the use of a car coupler, instructions substantially reciting their provisions, and not directing a verdict, but only stating the rules of law established by the statutes, and which would control the jury, were not misleading because they contained no explanation or limitation to the negligence alleged and proved, where the jury were further told that plaintiff could recover only if defendant was guilty of specific charges of negligence, and that the instruction should be regarded as a whole. (For other cases, see Trial, Dec. Dig. § 296[3].)

Error to Second Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; John Gibbons, Judge.

Action by Michael J. Kenna against the Calumet, Hammond & Southeastern Railroad Company. Judgment of the Appellate Court (206 IM. App. 17), on defendant's appeal affirmed a judgment of the circuit court for plaintiff, and defendant brings error. Affirmed.

F. J. Canty and P. L. McArdle, both of Chicago (Ryan, Condon & Livingston, of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

DUNN, J. Michael J. Kenna, a switchman in the employ of the Calumet, Hammond & Southeastern Railroad Company, recovered a judgment for $10,000 in the circuit court of Cook county for the loss of his hand by being crushed between two cars on the tracks of the company within the plant of the By-Products Coke Corporation. The railroad company appealed to the Appellate Court, where the judgment was affirmed, and the record has been brought before us for review by writ of certiorari.

The case was submitted to the jury on two counts, the first of which charged the defendant with a violation of the federal Safety Appliance Act, in switching and using in interstate commerce a car equipped with an automatic coupler of such defective construction and condition that it

Decision rendered, June 20, 1918. Rehearing denied, Oct. 2, 1918. 120 N. E. Rep. 259.

could not be coupled from the side without the necessity of a man going between the cars. The second count charged that the plaintiff's injury was caused by the conductor's negligence in causing another car to be run against standing cars while the plaintiff was between two of them, and is founded on the Federal Employers' Liability Act. Both counts allege that the defendant was a common carrier and engaged in interstate commerce. This was an allegation which was essential for the plaintiff to sustain by the evidence, and the plaintiff in error insists that he did not do this. At the conclusion of all the evidence the plaintiff in error asked for an instruction finding for the defendant, which was refused, and the court, among other instructions, gave to the jury one that the defendant was a common carrier by railroad both before and at the time of the plaintiff's injuries.

The plaintiff in error was organized under the general railroad act to construct a railroad commencing at a point in Chicago, in Cook county. north of Lake Calumet, running thence southerly along a line east of Lake Calumet, thence southeasterly to a line between the states of Illinois and Indiana, and also commencing at some point on the line just described east of Lake Calumet and running thence northeasterly across the Calumet river to the shore of Lake Michigan. The only railroad which the plaintiff in error operated consisted of a network of switch tracks within the ByProducts Coke Corporation's plant. There were about five miles of these tracks. They were of standard guage, and the company owned three locomotives which were operated each with a crew of five men. These tracks were included within a fence inclosing the plant of the By-Products Coke Corporation and connected with a delivery track of the New York, Chicago & St. Louis Railroad called the inner belt, within the inclosure, and with a delivery track of the Belt Railroad of Chicago just outside the fence and across a street. It does not appear from the evidence whether this connecting track crossing the street belonged to the plaintiff in error of the Belt Railroad. The only business of the plaintiff in error consisted in switching cars for the coke corporation between the tracks within the plant and the two belt railroads, and it switched all cars received or shipped by that corporation. Its engines never went beyond its own tracks and the delivery tracks. The only access to its tracks was over the property of the By-Products Coke Corporation. The plaintiff in error received about 100 cars a day coming from and going to places in different states. It received them from and delivered them to the belt railroads on their delivery tracks. It served no other purpose or corporation, and from the situation of its tracks it was not possible for it to do so or for any person to have access to its tracks for any other purpose. It was physically impossible for it to accept cars for delivery except to or from the coke corporation. The plaintiff in error contends that it is not a common carrier but a mere plant facility of the coke cor poration, incapable of serving the general public on account of the location of its lines within the premises of that company.

[1-3] A common carrier is one who undertakes for hire to transport from place to place the goods of such as choose to employ him. Railroad companies are under obligation to receive and transport all goods which may be offered to them for that purpose, though they are not bound to receive goods at places in their line where they have no facilities for doing so. A railroad corporation exercising all its franchises is a common carrier. The law authorizes the incorporation of railroad companies for no other purpose than the carriage of goods and passengers. Their other powers are all incidental to this purpose. They are not mere private corporations, but their franchises, together with all their other property, is affected with a public interest, and they are quasi public corporations. Railroad companies, while organized as private investments for the profit of their shareholders, assume certain obligations to the public, among which is the devotion of their property to the use of the public. Because

of their public character they are authorized to exercise a part of the sovereign power of the state, that is, the power of eminent domain, without which no railroad corporation can be organized under the statute. A railioad corporation, therefore, cannot be organized for any other purpose than the transportation of goods and persons for the public. It cannot be organized for the purpose of private transportation. When it engages in the business of transportation it does so only by virtue of its character, by reason of the fact that it is authorized, as a common carrier, to engage in that business. The fact that its facilities are limited in the beginning so as to enable it to serve only a few or only a single customer does not change the character of the corporation, nor does the fact that it never extends its facilities so as to render more general service to the public. It is the right of the public to use the road and demand service, and not the extent of the business, which determines its character.

[4] In fact, the services rendered by the plaintiff in error to its single customer were those of a common carrier. Through its connections with the belt lines it received, and it was under obligation to receive, cars consigned from four different railroads by any one desiring to ship to the By-Products Coke Corporation from the state of Illinois and other states, transported them within the plant of the coke corporation, and there delivered them to the consignee, receiving pay for this service as a part of the general freight rate paid by the shipper for the whole carriage, from its beginning to delivery to the consignee. The plaintiff in error also received from the coke corporation, within its plant, for transportation, cars intended for consignees in various places in the state of Illinois and other states, transported them to the delivery tracks of the belt lines, and there delivered them to the connecting carriers for transportation to the consignees. The plaintiff in error was under obligation to deliver these cars to the connecting carriers, and the connecting carriers were bound to receive and transport them. Neither the ownership of the stock of the plaintiff in error nor the contract under which the railroad was constructed and operated appears in the record, but whatever these were, the plaintiff in error is not the coke corporation but a different and independent corperation, which might have issued a through bill of lading for the transportation of these cars. In fact, at the time of the injury to the defendant in error it did receive for its pay a part of the through freight rate, though subsequently it was not allowed to make any charge against the connecting carrier for freight going outside the state.

In Devine v. Chicago & Calument River Railroad Co., 259 Ill. 449, 102 N. E. 803, the defendant's railroad was of the same character as that of the plaintiff in error, consisting of a series of tracks connecting the buildings of the Western Steel Car & Foundry Company with the tracks of railroad companies outside of the grounds of the car and foundry company. The tracks were owned by the car and foundry company and were operated by the Chicago & Calumet River Railroad Company under a lease; the railroad company doing the same kind of service as the plaintiff in error in this case. A switchman in the employ of the railroad company was killed and his administrator sued the company, charging a violation of the federal Safety Appliance Act. A recovery was sustained; the court holding that the railroad company was engaged in interstate commerce, assuming the apparent fact that it was a common carrier and amenable to the federal Safety Appliance Act.

In the case of Koelle v. Knecht, 99 Ill. 396, cited by the plaintiff in error, the private switch in question was not owned by the railroad company or operated by it as part of its railroad, but was constructed upon the grounds of individual owners for their private use. It was held that an owner who had granted a right of way for the switch track over his land had no right to use it over the land of another owner lying between the first owner's land and the railroad with which the switch was connected, and that the constitutional provision declaring all railroads to be