[244 U.S. 202, 203] Messrs. Tracy H. Duncan and Frank S. Masten for plaintiff in error.
Mr. George H. Eichelberger for defendants in error.
Memorandum opinion by Mr. Justice McReynolds:
Seeking damages under the laws of Ohio, defendant in error, Wattawa, brought this action in the common pleas court of Cuyahoga county. He alleged that, by reason of the Steamship Company's negligence, he suffered personal injuries in September, 1913, while employed by it as a deck hand on the Edwin N. Ohl, then lying at Sandusky, Ohio; and that although an employer of more than five men, the company was not a subscriber or contributor to the state insurance fund provided for by the Act of May 31, 1911,-the first Ohio Workmen's Compensation Act. In defense [244 U.S. 202, 204] the company elaimed that, although employing more than five men, it was engaged in interstate commerce, and therefore was not required to subscribe to the state insurance fund; denied negligence; and alleged that the accident resulted wholly from the employee's want of care; and moreover, that he had assumed the risk. Upon motion the allegation as to assumption of risk was stricken out.
The court charged that as the company had not accepted the Compensation Act, it could not rely upon common-law defenses based on the fellow-servant rule, assumption of risk, or contributory negligence. Judgment upon a verdict for $5,200 was affirmed by the court of appeals, and petitions in error and for certiorari were denied by the supreme court.
We are asked to reverse the action of the court of appeals upon two grounds: First, because the company was engaged in interstate commerce and therefore could not be subjected to the Compensation Act without burdening such commerce, contrary to the commerce clause of the Federal Constitution. Second, because article 3, 2 of the Constitution extended judicial power to all cases of admiralty and maritime jurisdiction, and thereby rendered the general maritime law part of the Federal laws not subject to alteration by state statutes.
The first point relied upon is entirely without merit, and inadequate to support our jurisdiction. In the absence of congressional legislation the settled general rule is that, without violating the commerce clause, the states may legislate concerning relative rights and duties of employers and employees while within their borders, although engaged in interstate commerce. Lake Shore & M. S. R. Co. v. Ohio, 173 U.S. 285, 297 , 43 S. L. ed. 702, 706, 19 Sup. Ct. Rep. 465; Minnesota Rate Cases (Simpson v. Shepard) 230 U.S. 352, 408 , 57 S. L. ed. 1511, 1545, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18.
The second reason for reversal now set up was not presented to the trial court in any form. It was not pointed out clearly, if at all, by the petition in error before [244 U.S. 202, 205] the court of appeals, and was not definitely mentioned in the opinion of that court, whose powers only extend to a review of the trial court's judgment for errors appearing on the record. Section 12,247 Ohio General Code, as amended by 103 Ohio Laws, pp. 405, 431. The question, therefore, is not properly before us. Mutual L. Ins. Co. v. McGrew, 188 U.S. 291, 308 , 309 S., 47 L. ed. 480, 484, 485, 63 L.R.A. 33, 23 Sup. Ct. Rep. 375.
The writ of error must be dismissed for want of jurisdiction.
Counsel for the Steamship Company have admitted of record here that this cause involves the same state of facts and questions of law as those presented in Number 469. They were heard together and the same judgment will be entered in each of them.