BLACK, J., dissenting.

320 U.S.

agrees not to sue the employer for occupational injuries. under the common law or statutes of Texas.1 An employee who fails to elect to retain his common law remedies against his employer is deemed to have waived only his "right of action at common law or under any statute of this state."2 (Italics supplied.) Clearly this Texas statute did not intend that a workman who elected to come under the compensation act should thereby lose any rights created by the laws of other states. That section of the Texas statutes relied upon by the Court requires no different result. It provides that an employee injured "outside of the State" cannot recover under the Texas act if "he has elected to pursue his remedy and recovers in the state where such injury occurred." latter statute pertains only to the right of recovery under Texas law; it does not purport to affect rights under the laws of other states. Nor does it proceed on any theory of res judicata for if an employee fails to recover in the other state he can nevertheless recover an award in Texas. And in any event the statute could not apply to the instant case, for this employee's injury did not occur "outside" of Texas. The dictum of the Travelers Insurance Co. v. Cason, 132 Tex. 393, 396, 124 S. W. 2d 321, referred

Plainly this

1 Cf. Anderson-Berney Realty Co. v. Plasida Soria, 123 Tex. 100, 67 S. W. 2d 222. If petitioner had any defense to Hunt's suit under Louisiana law, it was not the award but the implied contract. See Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556, aff'd 249 U. S. 152. Petitioner, however, pleaded only the award for its defense.

2 Texas Rev. Civ. Stat., Title 130, Art. 8306, § 3 (a). I do not agree with the Court that § 3 of this Article purports to compel an employee to waive rights which arise under the laws of another state. Such a construction would reduce the above quoted language of § 3 (a) to deceptive verbiage.

Rev. Civ. Stat., Article 8306, § 19. Apparently only one other state, Oregon, has a statute comparable to this. See Oregon Code (1935, Supplement) § 49-1813a.

to by the Court, pertains to the rights of a Texas workman who was injured in Pennsylvania.

In the absence of compelling language this Court should not construe the statutes of Texas in such a manner that grave questions of their constitutionality are raised. Cf. Yarborough v. Yarborough, supra, 213, 214. It is extremely doubtful whether Texas has the power, by any legal device, to preclude a sister state from granting to its own residents employed within its own borders that measure of compensation for occupational injuries which it deems advisable. "A state can legislate only with reference to its own jurisdiction; and the full faith and credit clause does not require the enforcement of every right which has ripened into a judgment of another state or has been conferred by its statutes." Broderick v. Rosner, 294 U. S. 629, 642. The practical result of the decision here is to hold that Texas has power to nullify a Louisiana statute which gives the beneficial protection of workmen's compensation to an injured workman who is a resident of Louisiana and made his contract of employment there. I "am not persuaded that the full faith and credit clause gives sanction to such control by one state of the internal affairs of another." Yarborough v. Yarborough, supra,

214.

II.

It is apparently conceded that Louisiana would not have been required to apply the Texas statute had there not been a judgment in the particular case by the Texas tribunal. This freedom of the state to apply its own policy in workmen's compensation cases despite a conflicting statute in the state in which the accident occurs rests on the theory that the state where the workman is hired or is domiciled has a genuine and special interest in the outcome of the litigation. Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532, 541-543, 549; cf. Pacific

BLACK, J., dissenting.

320 U.S.

Employers Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493, 503. These cases mark recognition of the fact that the authority of the states to act in any field is to be measured as much by vital state interests as by technical legal concepts. Cf. Hoopeston Canning Co. v. Cullen, 318 U. S. 313. The argument of state interest is hardly less compelling when Louisiana chooses to reject as decisive of the issues of the case a foreign judgment than when it rejects a foreign statute.

The interest of Texas in providing compensation for an injured employee who like respondent was only temporarily employed in the state is not the same as that of Louisiana where the respondent was domiciled and where the contract of employment was made. Someone has to take care of an individual who has received, as has respondent, an injury which permanently disables him from performance of his work. If employers or the consumers of their goods do not shoulder this responsibility, the general public of a state must. Neither state merely vindicates a private wrong growing out of tortious conduct. McKane v. New Amsterdam Casualty Co., 199 So. 175, 179 (Ct. of App. of La., Orleans); Texas Employers' Ins. Assn. v. Price, 291 S. W. 287, 290. The Louisiana Act was passed in the interest of the general welfare of the people of Louisiana. Puchner v. Employers' Liability Corp., 198 La. 922, 5 So. 2d 288. If it chooses to be more generous to injured workmen than Texas, no Constitutional issue is presented.

The classic theory of the interest of a state in workmen's compensation was expressed by this Court in upholding the constitutionality of a state compensation system: In the absence of a workmen's compensation system, "the injured workman is left to bear the greater part of industrial accident loss, which because of his limited income he is unable to sustain, so that he and those dependent upon him are overcome by poverty and frequently become a burden upon public or private charity." New York Central R. Co. v. White, 243 U. S. 188, 197.

The decision of the Court is not required by the Schendel case. In that case an employee brought an action in a Minnesota court under the Federal Employers' Liability Act. His employer brought an action in Iowa under the state law, the result of which was a holding by the Iowa court that the action had occurred in intrastate commerce. This Court held in the Schendel case, which was a review of the Minnesota proceedings, that the decision of the Iowa court that the accident occurred in intrastate commerce was res judicata and that the employee could not attempt to show that the accident had in fact occurred in interstate commerce as would have been necessary to bring the case within the coverage of the federal Act. The case is wholly distinguishable since the policy of the Federal Employers' Liability Act has not been thought to require that a federal award supplement a state workmen's compensation award. The statutes involved were not conflicting but were mutually exclusive, the federal Act covering only injuries in interstate commerce, U. S. C. Title 45, § 51 et seq.

Today's decision is flatly in conflict with accepted law and practice. The Restatement of Conflict of Laws, § 403 states categorically that an "award already had under the Workmen's Compensation Act of another state will not bar a proceeding under an applicable Act, but the amount paid on a prior award in another state will be credited on the second award," and one of the foremost studies of workmen's compensation states the same rule." Even in the absence of an express statute several state courts have explicitly approved this practice. Gilbert v. Des Lauriers Column Mould Co., 180 App. Div. 59, 167 N. Y. S. 274; Interstate Power Co. v. Industrial Commission, 203 Wis. 466, 234 N. W. 889; see similarly McLaughlin's Case, 274 Mass. 217, 174 N. E. 338; Migues's Case,

Dodd, Administration of Workmen's Compensation (1936) pp. 819, 820. See also to the same effect 2 Beale, The Conflict of Laws (1935) § 403.1.

281 Mass. 373, 183 N. E. 847. Texas itself for a time applied a similar ruling. Texas Employers' Ins. Assn. v. Price, 300 S. W. 667.

North Carolina provides by statute in cases like the present that the employee should be entitled to receive compensation provided that if he receives compensation from a state other than North Carolina, he will be given no more compensation by North Carolina than would raise the total recovery to the maximum allowed by the North Carolina law." Six other states have similar statutes." The Committee on Workmen's Compensation Legislation of the International Association of Industrial Accident Boards and Commissions has drafted a uniform state law on the subject which, were it applicable in the instant case, would permit the employee to waive his rights under the Louisiana law by bringing an action under the Texas law only by filing a written waiver with a Louisiana Commission which would not be binding until approved by such a Commission. This proposed uniform state law would presumably be unconstitutional under the decision announced today since it would leave in Louisiana the power to decide whether the employee should receive ad

8

N. C. Code (1939) § 8081 (rr).

7 Florida: Florida Statutes (1941) § 440.09 (1); Georgia: Georgia Code (1933) § 114-411; Maryland: Maryland Annotated Code (1939), Flack's Edition, Art. 101, § 80 (3); Ohio: Page's Ohio General Code, § 1465-68; South Carolina: S. C. Code (1942) § 7035-39; and Virginia: Virginia Code (1942) § 1887 (37). No less than thirty-four states have enacted statutes which expressly permit recovery of workmen's compensation under specified circumstances for injuries received in another state. And the courts of nine additional states have construed statutes which are not express to achieve the same result. See Schneider, Workmen's Compensation Law (1941) Vol. 1, c. 5, pp. 441-568; Schneider, Workmen's Compensation Statutes (1939), Vols. 1-4.

8 U. S. Bureau of Labor Statistics Bulletin No. 577 (1933) pp. 15-16.