(dissenting).
I should affirm the judgment for the plaintiff.
The facts of the case are fully and fairly stated,in the majority opinion. Further recital is therefore unnecessary. Also, there is no disagreement that the plaintiff’s right of action, whatever it may be, depends both in its origin and regulation upon the law of Pennsylvania which governs the rights of the parties. The question is simply as to what constitutes the pertinent law of that state binding upon a federal court.
*600In circumstances similar in all material respects to those attending the employment of and injury to the plaintiff in the instant case, the Supreme Court of Pennsylvania has held that the injured employee’s right of action against • his employer for damages for the latter’s negligence 'in the particular circumstances remains in full force and is not superseded by the Workmen’s Compensation Law of the State. Miller v. Reading Company, 292 Pa. 44, 140 A. 618. The majoidty of this court conclude, however, that the decision of the Supreme Court of Pennsylvania in the Miller case “constitutes an erroneous construction of federal statutes and is not binding upon us”. Thus free to ascertain and declare the law of the state independently, the majority hold that “The remedy of the appellee lies solely in the Pennsylvania Workmen’s Compensation Act and was not cognizable in an action at law.”
The resultant impasse due to these conflicting conclusions constitutes a very effective barrier tp the plaintiff. Until the state rule in the Miller case is changed by competent state authority, the plaintiff’s claim is not cognizable under the compensation law. Moreover, the year within which such a claim must be filed has long since passed; and, the time for filing a compensation claim is not a mere limitation of action but goes to the jurisdiction of the Compensation Board. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602. Demmel v. Dilworth, 136 Pa. Super. 37, 7 A.2d 50. See also Guy v. Stoecklein Baking Co., 133 Pa.Super. 38, 1 A.2d 839. While the litigant’s failure to pursue his rights timely in the appropriate forum will not be permitted to clothe him with a right which he would not otherwise possess, before we fault the plaintiff for..his choice of action or forum, we shoufd make certain that his choice was wrong. Of that, I am by no means convinced'," hence, this dissent.
• The jurisdiction of the district court does not rest upon a federally conferred right or remedy but was invoked upon the ground of diversity of citizenship with the requisite amount in controversy. The statement of claim plainly discloses that the plaintiff -was under no misapprehension that:¡the .Federal Safety Appliance Acts gave him any right of actior or that the appellant’s breach of the duty which those Acts impose constituted any more than evidence of the employer’s negligence. The plaintiff sought federal court jurisdiction for the enforcement of an existing right recognized by the applicable local law. However, as a result of the decision now arrived at by the majority, the plaintiff finds himself without legal means for the redress of a serious injury which he admittedly suffered in the course of his employment through the established negligence of his employer. The jury’s verdict concluded the facts in the plaintiff’s favor; and no substantial trial error is assigned with respect to the issues of fact.
The majority assert reliance upon the ruling of the Supreme Court in Tipton v. Atchison, Topeka & Santa Fe R. Co., 298 U.S. 141, 56 S.Ct. 715, 80 L.Ed. 1091, 104 A.L.R. 831. In so doing, it seems to me that the Tipton case is applied to a situation to which that decision is not germane by its own intendment.
In the Tipton case, the Supreme Court rejected, as not being declaratory- of the law of California, two decisions by state courts of intermediate appeal, reviews having been refused by the Supreme Court of the state. The reason for the rejection of the California court decisions in the Tipton case was because the state courts, instead of- construing the California compensation statute as having excluded from its purview the claims there involved, erroneously construed federal statutes (Safety Appliance Acts in the one case and Boiler Inspection Act in the other) as affording “a remedy in the nature of an action for damages” .whiqh the state statute could not competently supersede. This,, of course, was error. - While the Safety Appliance Acts do afford, an injured employee a ground for. complaint for their-violation, which he would not otherwise have, they neither provide nor require a remedy for the cause but.leave the matter of the remedy to .the' regulation of the-states.
I apprehend the rule tc be that, where a state court excludes a claim from the-operation of a state statute upon the mistaken notion that a federal statute affords a remedy for the claim, the state decision is not binding upon a federal court, but that, where the state court’s exclusion of the -claim from the state statute proceeds, from that court’s interpretation of the-legislative intent with, respect to' the scope of the state statute, the decision in such, *601instance is binding upon a federal court as the decision of a competent state court declaratory of pertinent local law. The thing of importance in the particular circumstances is how the state court arrives at its exclusion of the employee’s claim from the state compensation statute. Support for this view, I believe, is to be found not only in the Tipton case blit also in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120, 44 S.Ct. 274, 68 L.Ed. 582.
After reviewing the two California decisions which were rejected in the Tipton case, Mr. Justice Roberts speaking for the Supreme Court, said, 298 U.S. at page 151, 56 S.Ct. at page 719, 80 L.Ed. 1091, 104 A.L.R. 831: “If these decisions of intermediate Courts of Appeal, and the refusal of the Supreme Court of California to review them, amount to no more than a judicial construction of the Compensation Act as having, by its terms, no application in the circumstances, they are binding authority in federal courts. If, on the other hand, the state courts excluded railroad employees injured in intrastate operations from the benefits of the Compensation Act, not as a matter of construction of the statute, but because they thought the Safety Appliance Acts required the state to afford a remedy in the nature of an action for damages, then the court below was right in disregarding that erroneous construction of the federal acts.”
And, in Red Cross Line v. Atlantic Fruit Co., supra, where a New York Arbitration Act was invoked for the arbitrament of a claim arising under a maritime contract, the contention was advanced that such controversies are within the ex- ' elusive jurisdiction of the admiralty courts under the Federal Constitution and the Judicial Code. Accordingly, the New York Court of Appeals, adopting this view, dismissed the arbitration proceeding. In reversing the judgment of the Court of Ap peals, Mr. Justice Brandéis, for the Supreme Court, states the argument and the answer, 264 U.S. at page 120, 44 S.Ct. at page 275, 68 L.Ed. 582, as follows: “The argument is that the Court of Appeals held, as a matter of statutory construction, that the Arbitration Law does not extend to controversies which are within the admiralty jurisdiction, and that the substantive claim sought to be enforced is so cognizable. * * * If that court had construed the Arbitration Law as excluding from its scope controversies which are within the admiralty jurisdiction, the construction given to the state statute would bind us, and there would be no occasion io consider the constitutional question presented.”
What was thus clearly denominated in the Red Cross Line case as being binding upon a federal court is what I take to be the effect of the decision of the Pennsylvania Supreme Court in the Miller case where the latter court held at page 50 of 292 Pa., 140 A. at page 620, that: “Our Workmen’s Compensation Act gave to a board exclusive jurisdiction of proceedings to adjudicate claims of employees, which, by consent, express or implied, it was agreed should be so disposed of, and, as to such cases, jurisdiction of the courts to try and determine is ousted. But as to demands not arising from the ordinary relation of employer and employee, such as the enforcement of rights fixed by federal statute, their powers remain as if no such state legislation was in force.” (Emphasis supplied.)
As the claim in the Miller case arose out of the employer’s violation of a duty to its employee which was not incident to “the ordinary relationship of employer and employee”, the apparent intent of the slate court decision was to exclude the claim from the provisions of the compensation act as not being within the purview of that statute as written. The effect of the state decision is that the legislature, by implyiug from the acquiescence of the parties a contract for compensation which is pre-sunned from their failure to renounce formally the provisions of the compensation act,1 did not thereby embrace within such implied contracts claims not arising “from the ordinary relationship of employer and employee”, as known to the law of the state; and that, to do so, would re-TÚre a clearly expressed intent to that end on the part of the legislature. This conclusion of the slate court amounts to a judicial interpretation of the legislative intent with respect to the scope of the compensation act and, as such, constitutes a construction of the state statute.
The action of the state court in such regard was the exercise of a power peculiarly within the competency of that *602court,- — a power which it exercised in a somewhat similar manner in its construction of the compensation act with respect to a minor’s right of action against his employer for damages. As originally written, Art. Ill, Sec. 302, of the act provided, inter 'alia, that “In the employment of minors, article three [the elective compensation provision] shall be presumed to apply, unless the said written notice [renouncing compensation] be given by or to the parent or guardian of the minor”.2 Notwithstanding the sweep of this statutory provision, the Supreme Court of the state ruled that a minor employee’s action of trespass for his employer’s negligence was not superseded by the compensation act where the minor was employed in violation of a state statute. Lincoln v. National Tube Co., 268 Pa. 504, 506, 112 A. 73. See also King et ux. v. Darlington Brick & Mining Co., 284 Pa. 277, 131 A. 241. Later, the legislature by amendment expressly brought the claims of illegally employed minors within the compensation act as we shall see.
The Miller case was decided in 1928. Since then the compensation act has been amended a number of times but at no time has the legislature seen fit to repudiate the intention imputed to it by the state court in the Miller case. In 1937 comprehensive and important amendments of the compensation law were enacted.3 While the legislature then expressly offset or changed existing law under prior court decisions with respect to the act, and notably the rule as to minors under the decisions above cited,4 nothing was done to bring within the compensation law the claims of intrastate employees for injuries received through the employer’s violation of the Federal Safety Appliance Acts.
Furthermore, legislative confirmation of the intended scope of the compensation law, as limited by the State Supreme Court in the Miller case, does not rest merely upon the implication of fact. It is implied by positive law. Thus, at the same 1937 session, and prior to the amendments to which reference has just been made, the Pennsylvania legislature enacted a statute prescribing rules for statutory construction wherein it is provided: “That when a court of last resort has construed the language used in a law, the Legislature in subsequent laws on the same subject -matter intend the same construction to be placed upon such language”.5 What therefore had been the legislative intent in the prior compensation act, as judicially construed, became by statutory adoption the legislative intent with respect to the amended compensation act in its unchanged provisions. Whether the Statutory Construction Act represents a valid exercise of legislative power, we need not inquire. Nor is it of importance that the rule thus statutorily promulgated had been a canon of construction judicially followed in Pennslyvania antecedently. The Statutory Construction Act of 1937 evidences none the less an expression by the legislature of its intended acceptance of the construction of the compensation law by the State Supreme Court with respect to the pertinent statutory provisions which were later reenacted by amendment without material change.6 The point here made is simply as to the evident legislative intent.
Concededly, the power to say whether claims of intrastate employees' for damages due to their employers’ violation of the Federal Safety Appliance Acts shall come under the state compensation law lies with the state legislature. The Safety Appliance Acts “leave the genesis and regulation [of an employee’s right of action for their breach] to the law of the states”. Tipton case, 298 U.S. at pages 147 and 148, 56 S.Ct. at page 717, 80 L.Ed. 1091, 104 A.L.R. 831. When, therefore, the Pennsylvania legislature studiously refrained from subjecting such claims to the compensation law by the *603later amendments to which the legislative intent, as construed in the Miller case, is directly imputed by the legislature through the express medium of the Statutory Construction Act, it seems to me that the law of the state is thus determined. And, after all, the legislative intent, when once discovered, controls. In State Tax Commission v. VanCott, 306 U.S. 511, 59 S. Ct. 605, 83 L.Ed. 950, cited by the majority, it does not appear that there was subsequent action by the Utah legislature in apparent confirmation of the state court decision as there was in the instant case by the Pennsylvania legislature following the decision in the Miller case. Hence, the question which this appeal presents was not involved in the VanCott case.
It. is true, as the majority of this court point out, the opinion of the Pennsylvania Supreme Court in the Miller case contains statements which indicate that that court thought that the Federal Safety Appliance Acts imply an employee’s right of action for their breach which it is the duty of the states to supply or recognize by way of an action at law for damages. While these considerations would have been highly important in other circumstances, they seem to me to be no longer material in view of the action of the legislature, subsequent to the decision in the Miller case, particularly when contrasted with its positive action with respect to the claims of illegally employed minors. Whether or not the Pennsylvania court so mistakenly conceived the effect and requirements of the Safety Appliance Acts, it is none the less true that the Miller case contained what amounted to an independent construction of the state statute, which by reason of subsequent legislative confirmation became the more definite and authoritative. And, it was said in the Tipton case, 298 U.S. at page 155, 56 S.Ct. at page 720, 80 L.Ed. 1091, 104 A.L.R. 831, that: “A definite and authoritative decision that its [the compensation act’s] scope is so limited, and that the appropriate remedy under state law is an action for damages, will, of course, be binding upon federal courts.”
So bound by the law of the state, we should affirm the judgment for the plaintiff. Further changes in the compensation law are appropriately matter for legislative action whereof all persons will be duly advised and thenceforth bound. In such circumstances, claimants will not find, after pursuing a supposed right under slate law, that they have been litigating ' upon the horns of a dilemma by which they have been impaled.
Act of Tune 2, 1915, P.L. 736, 738, 739, Art. III, Secs. 301 and 302, 77 P.S. §§ 431, 461.
Act of June 2, 1915, P.L. 736, 739, Art. III, Sec. 302, 77 P.S. § 461.
Amendment of June 4, 1937, P.L. 1552, Sec. 1, etc., 77 P.S. § 1 et seq., p. 3 et seq.
See the amendments of June 4, 1937, P.L. 1552, § 1, 77 P.S. §§ 28 and 421, whereby the right to contract for compensation and to file a claim is expressly conferred upon a minor even though the employment is in violation of a state statute.
Act of May 28, 1937, P.L. 1019, Art. IV, See. 52, subsection (4), 46 P.S. § 552 (4).
Compare Secs. 301 and 302 of the Act of June 2, 1915, P.L. 736, 738, 739, with the cognate provisions in the compensation act after the amendment of June 4, 1937, P.L. 1552, Sec. 1, 77 P.S. §§ 431 and 461.