[2, 3] It is obvious, therefore, that the right | sion or a deprivation of fundamental rights." of the plaintiff to maintain this action in Rhode Island is determined by the fact as to whether or not he has such right in Massachusetts. The demurrer admits the law of Massachusetts to be correctly pleaded, and also admits, for the purpose of the hearing, the alleged statement of facts in the plea to be true. Upon such admissions it is evidence that the plaintiff has waived in Massachusetts his right to bring and maintain a common-law action to recover for the injuries alleged in the declaration, by failing at the time of his said hiring to give notice in writing to the defendant that he claimed his right to bring such action. In other words, by such failure to give notice he made his choice of remedy, so that his right to maintain a common-law action for such injuries was relinquished and given up, and no longer exists. The terms of the law are explicit, and there is no ground to question that such is its plain purpose and meaning. If the act in question be constitutional, the plaintiff had, when the present action was brought, no right to maintain such action in Massachusetts, and therefore had no right of action in Rhode Island. But the provision of said act respecting the waiving of the right of action at common law in Massachusetts has been held to be constitutional by the Supreme Judicial Court of that state in Opinion of the Justices, 209 Mass. 607, 610, 611, 96 N. E. 308, 315, 316. The court says: "We see nothing unconstitutional in providing, * * As workmen's compensation acts are of comparatively recent enactment, it is not to be expected that many court decisions can be found on the point here considered. However, the employer's liability act of New Jersey, which contains an optional provision similar to that of Massachusetts, has recently been considered by the Supreme Court of New York in Albanese v. Stewart et al., 78 Misc. Rep. 581, 138 N. Y. Supp. 942. Plaintiff brought a common-law action in New York to recover damages for injuries received in New Jersey. The defendants pleaded the New Jersey act, to which pleas the plaintiff demurred. The court in its opinion says: "This is a common-law action brought by the plaintiff, a servant, against his master, to recover damages for personal injuries sustained in the course of his employment in the state of New Jersey. The separate defenses are based on the workmen's compensation act of the state of New Jersey. * * It is conceded that the act was in force at the time of the accident, and that ordinarily the liability of the defendant would be governed by the laws * * * of New Jersey. *The first separate defense in the answer sets forth that the provisions of the statute constitute a contract between the plaintiff and the defendants, whereby the plaintiff agreed to accept and the defendants agreed to pay a certain sum of money in case of injury occurring to the plaintiff while performing duties in the as is done in part 1, § 5, that the employé course of his employment; that each party shall be deemed to have waived his right of agreed to waive all questions of the negliaction at common law if he shall not have gence of either, and to be bound solely by given notice to his employer as therein pro- the terms of the statute. * * * The New vided. The effect of the provisions referred Jersey act is not a compulsory statute. It to is to leave it to the employé's option is a so-called optional or elective statute. whether he will or will not waive his right* The statute * * becomes comof action at common law. By sub-pulsory only in the event that neither party scribing to the association an employer vol- disaffirms it. * *The accident happenantarily agrees to be bound by the provisions ed in the state of New Jersey, and as the of the act. The same is true of an employé | liability of the defendants is governed by the who does not choose to stand upon his com- law of that state I think the demurrer mon-law rights. An employer who does not should be overruled." The constitutionality subscribe to the association will no longer of the New Jersey act was upheld by the have the right, in an action by his employé Supreme Court of that state in Sexton v. against him at common law, to set up the de- Newark District Telephone Co., 86 Atl. 451. frase of contributory negligence or assumption of the risk, or to show that the injury was caused by the negligence of a fellow servant. In the case of an employé who does Sot accept the compensation provided for by the act, and whose employer has become a abscriber to the association, an action no lenger can be maintained for death under the employer's liability act. But these condderations do not constitute legal compul * * * We therefore reach the conclusion that the plaintiff is not entitled to bring and prosecute in this state the common-law action under consideration, as by his own act his right thereto has been extinguished in the state where the injury was received. His exception to the decision of the superior court overruling his demurrer is overruled, and the case is remitted to the superior court for the entry of judgment on the decision. and a holder of an insurance policy in a lia- | red from maintaining the present action. It bility insurance company so authorized, insuring said defendant's liability to pay said compensation herein before referred to; that before the time of said plaintiff's said contract of hire the said defendant posted printed notice that it had provided for the payment of said compensation to injured employés at one of the principal entrances to said defendant's factory, where said plaintiff was later employed as aforesaid, and in each room thereof where labor was employed, which said notice said defendant so maintained from the time of posting thereof up to and after the time when said' plaintiff's said injuries were sustained; and that said plaintiff at the time of his said contract of hire, or at any time thereafter, did not give to said defendant notice in writing that he claimed his right of action at common law to recover damages for personal injuries." The plaintiff demurred to said special plea, and stated the grounds of his demurrer, as follows: "(1) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over parties to said action. (2) That so far as appears in or by said plea there is nothing that defeats the jurisdiction of this court over the subject-matter of said action. (3) That so far as appears in or by said plea the law of the commonwealth of Massachusetts therein referred to does not extinguish the plaintiff's said right of action. (4) That so far as appears in or by said plea the law of the com monwealth of Massachusetts therein re ferred to does not bar the plaintiff from maintaining his said action." And in the event that said demurrer should be overruled the plaintiff filed his replication to said plea, setting up "that the place where the said plaintiff was employed as a servant by said defendant and the place where said plaintiff entered upon and continued his said employment as said servant of said defendant, and the place where the said injuries as alleged in the two counts of his said declaration were sustained, was and is within the limits of the state of Rhode Island, and not in the commonwealth of Massachusetts." The plaintiff's demurrer was overruled, and his exception noted. Hearing was had on the replication to the special plea, jury trial being waived, and there was decision for defendant, and plaintiff excepted thereto. The case is now before this court on plaintiff's bill of exceptions, which contains only the exception to the decision overruling plaintiff's said demurrer. is the law of this state, and generally, that It is not In Burns v. Grand Rapids & I. R. Co., 113 Ind. 169, at page 176, 15 N. E. 230, at page The situation is the same, although the act or omission to act might have been actionable if occurring in the jurisdiction of the forum. Chicago, R. I. & Pacific R. R. Co. v. Thompson, 100 Tex. 185, 97 S. W. 459, 7 L. [1] The important question raised by the R. A. (N. S.) 191, 123 Am. St. Rep. 798: demurrer is whether the Massachusetts law Boston & Maine R. R. Co. v. Hurd, 108 Fed. pleaded in this case, as applied to the facts 116, 125, 47 C. C. A. 615, 56 L. R. A. 196. set out in the special plea, extinguishes the The exception to this is that under the prinplaintiff's right to maintain a common-law ciples of comity an action will not be permi action for the injuries received by him, as ted to be prosecuted, if it would violate the [2, 3] It is obvious, therefore, that the right | sion or a deprivation of fundamental rights." of the plaintiff to maintain this action in As workmen's compensation acts are of Rhode Island is determined by the fact as comparatively recent enactment, it is not to to whether or not he has such right in Mas- be expected that many court decisions can sachusetts. The demurrer admits the law of be found on the point here considered. HowMassachusetts to be correctly pleaded, and ever, the employer's liability act of New Jer also admits, for the purpose of the hearing, sey, which contains an optional provision the alleged statement of facts in the plea to similar to that of Massachusetts, has recent be true. Upon such admissions it is evidence ly been considered by the Supreme Court of that the plaintiff has waived in Massachu- New York in Albanese v. Stewart et al., 78 setts his right to bring and maintain a Misc. Rep. 581, 138 N. Y. Supp. 942. Plaincommon-law action to recover for the inju- tiff brought a common-law action in New ries alleged in the declaration, by failing at York to recover damages for injuries receivthe time of his said hiring to give notice in ed in New Jersey. The defendants pleaded writing to the defendant that he claimed his the New Jersey act, to which pleas the plainright to bring such action. In other words, tiff demurred. The court in its opinion by such failure to give notice he made his says: "This is a common-law action brought choice of remedy, so that his right to main- by the plaintiff, a servant, against his mastain a common-law action for such injuries ter, to recover damages for personal injuwas relinquished and given up, and no longer ries sustained in the course of his employexists. The terms of the law are explicit, ment in the state of New Jersey. The sepaand there is no ground to question that such rate defenses are based on the workmen's is its plain purpose and meaning. If the act compensation act of the state of New Jersey. in question be constitutional, the plaintiff | * * * It is conceded that the act was in had, when the present action was brought, force at the time of the accident, and that no right to maintain such action in Massa- ordinarily the liability of the defendant chusetts, and therefore had no right of action would be governed by the laws of in Rhode Island. But the provision of said New Jersey. * * * The first separate deact respecting the waiving of the right of fense in the answer sets forth that the proaction at common law in Massachusetts has visions of the statute constitute a contract been held to be constitutional by the Supreme between the plaintiff and the defendants, Judicial Court of that state in Opinion of the whereby the plaintiff agreed to accept and Justices, 209 Mass. 607, 610, 611, 96 N. E. the defendants agreed to pay a certain sum 308, 315, 316. The court says: "We see of money in case of injury occurring to the nothing unconstitutional in providing, * plaintiff while performing duties in the as is done in part 1, § 5, that the employé course of his employment; that each party shall be deemed to have waived his right of agreed to waive all questions of the negliaction at common law if he shall not have gence of either, and to be bound solely by given notice to his employer as therein pro- the terms of the statute. The New vided. The effect of the provisions referred Jersey act is not a compulsory statute. It to is to leave it to the employé's option is a so-called optional or elective statute. whether he will or will not waive his right | * * * The statute * * * becomes comof action at common law. By sub-pulsory only in the event that neither party scribing to the association an employer vol- disaffirms it. The accident happenuntarily agrees to be bound by the provisions ed in the state of New Jersey, and as the of the act. The same is true of an employé | liability of the defendants is governed by the who does not choose to stand upon his com- law of that state I think the demurrer mon-law rights. An employer who does not should be overruled." The constitutionality subscribe to the association will no longer of the New Jersey act was upheld by the have the right, in an action by his employé Supreme Court of that state in Sexton v. against him at common law, to set up the de- Newark District Telephone Co., 86 Atl. 451. fense of contributory negligence or assumption of the risk, or to show that the injury was caused by the negligence of a fellow servant. In the case of an employé who does not accept the compensation provided for by the act, and whose employer has become a subscriber to the association, an action no longer can be maintained for death under the employer's liability act. But these considerations do not constitute legal compul * * * * We therefore reach the conclusion that the plaintiff is not entitled to bring and prosecute in this state the common-law action under consideration, as by his own act his right thereto has been extinguished in the state where the injury was received. His exception to the decision of the superior court overruling his demurrer is overruled, and the case is remitted to the superior court for the entry of judgment on the decision. GAUTIERI ♥. CIANCIARULO. (Supreme Court of Rhode Island. June 5, 1913.) Action by Giuseppina P. Gautieri against Bennie Cianciarulo. Heard on question why cause should not be remitted to superior court, with direction to enter judgment for defendant. Cause remitted, with direction to enter judgment for defendant. See, also, 34 R. I. 512, 84 Atl. 858. William M. P. Bowen, of Providence, for plaintiff. Anthony V. Pettine, of Providence, for defendant. PER CURIAM. In the above-entitled case an opportunity was given to the plaintiff to appear before this court on November 4, 1912, at 10 a. m., and show cause why the same should not be remitted to the superior court with direction to enter judgment for the defendant. The plaintiff appeared by counsel at the time specified and was heard. The court finds no reason for changing or modifying its former conclusions, and the case is therefore remitted to the superior court, with direction to enter judgment for the defendant. (120 Md. 53) CHESAPEAKE STEVEDORING CO. v. HUFNAGEL. in the best position to appreciate the meaning and force of his evidence, and the judgment will not be reversed for errors in the admission of testimony of this kind unless it clearly appears that the appellant has been injured. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1068, 1069, 3852-3857, 4153-4157, 4166; Dec. Dig. §§ 971, 1050.*] 5. TRIAL ( 247*) - INSTRUCTIONS DRAWAL. WITH The trial court has power after argument to withdraw a prayer previously granted. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 568; Dec. Dig. § 247.*] Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge. Action by Leonard Hufnagel against the Chesapeake Stevedoring Company. Judgment for plaintiff, and defendant appeals. Affirmed. Defendant's prayers which were granted were as follows: "Defendant's Third Prayer. The defendant prays the court to instruct the jury that' if the jury find that the injuries to the plaintiff sued for in this action were caused by the negligence of Charles Sadoski, the deckman, and that said Charles Sadoski was employed and assigned by one John Smith, the (Court of Appeals of Maryland. Feb. 15, 1913.) foreman of the defendant, to the position 1. MASTER and Servant (§ 265*) ACTIONS FOR INJURIES EVIDENCE UNFITNESS OF FELLOW SERVANTS. In an employé's action for injuries caused by the negligence of a fellow employé, evidence of the fellow employe's general reputation for unfitness and incompetency to discharge his duties was sufficient to overcome the presumption that the employer had used due care in selecting him for that work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. $265.*] 2. MASTER AND SERVANT (§§ 189, 190*)-LIABILITY FOR INJURIES-NEGLIGENCE OF VICE PRINCIPAL. An employé who had the full charge, control, and direction of a vessel which was being loaded, and had entire charge and direction of the work and employed and discharged the men, was a vice principal, and for his negligence in employing an unfit and incompetent deckman the employer was liable to a employé injured through the deckman's negligence. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 427-435, 437-448, 449474; Dec. Dig. §§ 189, 190.*] In a stevedore's action for injuries due to the negligence of a deckman, a fellow servant, the deckman's unfitness to discharge his duties could be proved by showing his general reputa tion for unfitness among stevedores among whom he dwelt and worked and with whom he was chiefly conversant. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 347, 928-931; Dec. Dig § 271.*] 4. APPEAL AND ERROR (§§ 971, 1050*)-Ex AMINATION-DISCRETION OF COURT. In eliciting the testimony of uneducated witnesses unacquainted with our language, and in directing the course of their examination, much must be left to the presiding judge, who sees the witness, observes his deficiencies, and is above stated on the boat on which the plain- so find. "Defendant's Seventh Prayer. The defendant prays the court to instruct the jury that, under the pleadings and the evidence in this case, there is no legally sufficient evidence to entitle the plaintiff to recover under the fourth count of the plaintiff's declaration, and the verdict of the jury must be for the defendant on that count. (Granted.) "Defendant's Eighth Prayer. The defendant prays the court to instruct the jury that under the undisputed evidence in this case the employé whose duty, as set out in the first count of the plaintiff's declaration, was to sing out warning before the lowering of a sling load into the hold of the vessel in which the plaintiff was working on or about the 25th day of February, 1911, was a fellow servant of the plaintiff at the time of the accident set out in said count, and if they find that said fellow workman was negligent in failing to sing out and warn the plaintiff, as charged in said first count, and shall find that said failure to warn caused the injuries | was guilty of contributory negligence, and of which the plaintiff complains, then the the verdict of the jury must be for the deplaintiff cannot recover under said first count fendant. (Granted.) of his declaration, unless the jury shall further find that the defendant did not use due and reasonable care in the selection or employment of said fellow workman, or was negligent in retaining said fellow workman in his service. (Granted.) "Defendant's Fourteenth Prayer. The defendant prays the court to instruct the jury notwithstanding that they may find from the evidence that the negligence of Charles Sadoski, the deckman, caused the injuries of which plaintiff complains; yet if they find "Defendant's Ninth Prayer. The defend- from the evidence that the plaintiff knew, or ant prays the court to instruct the jury that by the exercise of ordinary care could have under the undisputed evidence in this case known, before the accident for which this the employé whose duty, as set out in the suit was brought, that said Charles Sadoski second count of the plaintiff's declaration, was incompetent to fill the position of deckwas to sing out the warning before the low-man and properly perform the duties of said ering of a sling load into the hold of the position, and that he had been assigned to vessel in which the plaintiff was working on the position of deckman on the evening of or about the 25th day of February, 1911, was the accident, then their verdict must be for a fellow workman of the plaintiff at the time the defendant. (Granted as modified.)" of the accident, set out in said count, and if they find that said fellow workman was negligent in failing to be at his post and in the performance of his duties, as charged in the said second count, and shall find that said negligence caused the injuries of which plaintiff complains, then the plaintiff cannot recover under said second count of his declaration, unless they further find that defendant did not use due and reasonable care in the BURKE, J. This is an action brought to selection or employment of said fellow work-recover damages for personal injuries receivman, or was negligent in retaining said fel-ed by the appellee, an employé of the Chesalow workman in his service. (Granted.) "Defendant's Tenth Prayer. The defendant prays the court to instruct the jury under the undisputed evidence in this case the employé whose duty, as set out in the third count in the plaintiff's declaration, was to sing out a warning before the lowering of the sling load into the hold of the vessel in which the plaintiff was working on or about the 25th day of February, 1911, was a fellow workman of the plaintiff at the time of the accident set out in said count, and if they find that said co-worker was negligent in failing to properly warn the said plaintiff, as set out in the said third count of the plaintiff's declaration, and shall find that said failure to properly warn the plaintiff was the cause of the injuries of which plaintiff complains, then the plaintiff cannot recover under said third count, unless the jury shall further find that the defendant did not use due and reasonable care in the selection or employment of said fellow workman, or was negligent in retaining said fellow workman in his service. (Granted.)" "Defendant's Thirteenth Prayer. The defendant prays the court to instruct the jury that if the jury shall find from the evidence in this case that the plaintiff did not exercise a reasonable degree of care and prudence in the performance of the duties of his position, and in going underneath the open hatch on the vessel in which he was employed on or about the 25th day of February, 1911, and that this absence of care and prudence contributed to the accident for which Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. L. Vernon Miller and George Weems Williams, both of Baltimore, for appellant. John C. Kumpf and David Ash, both of Baltimore, for appellee. peake Stevedoring Company, a corporation engaged in the business of loading and unloading ships at the port of Baltimore. The appellee is a stevedore, and on the night of the 25th of February, 1911, while engaged in the performance of his duties in loading a vessel, was severely injured by the act of one of the servants of the defendant dropping upon him, through the hatchway of a vessel called the "Sloterdyke," a sling load of flour weighing about 1,800 pounds. The verdict and judgment were in his favor, and the defendant has appealed. The amended declaration upon which the case was tried contained four counts; the fourth count, however, was abandoned at the trial. It is unnecessary to set out the allegations of the declaration. It alleged facts sufficient, if proved, to render the master liable for the negligent act of a fellow servant of the plaintiff by which the injuries complained of were occasioned. On the night the plaintiff was injured, he was working in the hold of the vessel in obedience to the directions of the foreman in charge of the ship. In doing the work assigned him, it was proper for him to stand directly under the hatchway, which occupied a space about 18 feet wide and 30 feet long, through which the cargo was lowered into the hold from the upper deck. He had charge of a number of men in the hold, and, as he was in a stooping condition laying some boards upon grain in the bottom of the vessel, a sling load of flour was thrown upon him from the upper deck. |