It appears from the complaint as amended that the death of the employé resulted proximately from the accident within three years; and that he left a widow and two dependent children. The compensation under these circumstances should be paid to the widow, without an administration of the estate of the decedent, for the benefit of herself and the two dependent children. No necessity for an administration of the estate existed under the facts averred in the complaint. When the three above-mentioned sections of the act are read and construed together, and are applied to the facts stated in the complaint, it is evident that the plaintiff, the widow of decedent, is the proper party to maintain this suit. This was clearly the intent of the act under the facts appearing in the complaint. Section 1, p. 206, and section 14, subds. 4, and 7, p. 218, Workmen's Compensation Act (Gen. Acts 1919, p. 206); Ga. Casualty Co. v. Haygood, 210 Ala. 56, 97 South. 87, headnote 3. The facts averred in the amended complaint show that Havard, the deceased em The plaintiff secured an order of the court authorizing her under section 7 of the act to employ an attorney for the purpose of proceeding against the defendant under section 28 of the act (Gen. Acts 1919, p. 206), and filed her complaint to recover compensation, as provided by the Workmen's Compensation Act. The defendant demurred to the complaint, which demurrer was sus-ployé, was a lumber inspector and grader, tained. The complaint was amended; demurrers to it as amended were filed by the defendant, and they were sustained by the court. On the same day the court refused the motion of plaintiff, theretofore filed, to fix a day to hear her suit. The plaintiff declined to plead further, and the court then rendered judgment in favor of defendant and against plaintiff, dismissed the cause, and taxed plaintiff with the court costs. No evidence was taken, and the case is before us on the record proper by certiorari. Was this suit properly brought by the plaintiff, the widow of the deceased employé, for the benefit of herself and the two children of the decedent? It is true that section 1, pt. 1, of this act (Gen. Acts 1919, p. 206), states "He [meaning employé], or in case of death, his personal representative, for the exclusive benefits of the surviving spouse and next of kin, shall receive compensation by way of damages therefor from the employer." and was employed in that capacity by the defendant, and he was performing his duties under such employment when the accident occurred which caused his death. The defendant was operating a lumber yard and planing mill, located on the bank of Mobile river, in the city of Mobile, and was regularly receiving shipments of lumber by barges at the wharf in front of his mill. The barges were towed to the wharf by tugs. The defendant was employing regularly more than 16 men, and had elected to become subject to part 2 of the Workmen's Compensation Act with relation to the men under his employment. The amended complaint also alleged that the deceased and the defendant were subject to part 2 of the act at the time of the death of this employé, and it states the average weekly earnings of the employé. Section 5 of the amended complaint reads as follows: "That about 1:30 p. m. on, to wit, the said 24th of August, 1922, while the said Fritz R. Havard, in the usual course of the said business But section 14, subd. 4, p. 218, of the act, of his employer, the defendant, was sitting or reads: "In death cases, where the death results proximately from the accident within three years compensation payable to dependents shall be computed on the following basis and shall be paid to the persons entitled thereto without administration." standing upon a laden schooner moored in Mobile river alongside of a barge, which in turn was moored in Mobile river to the dock or wharf at the defendant's said plant, and was engaged for his said employer in grading and/or tallying lumber then being unloaded from said barge, and from thence carried or carted into the yard or mill of defendant's said plant, he Section 14, subd. 7, p. 218, of this act, was injured and came to his death as the prox reads: "If the deceased employee leave a dependent widow * * and either two or three dependent children, there shall be paid to the widow for the benefit of herself and such children fifty per centum of the average weekly earnings of the deceased." imate result of an accident arising out of and in the course of his said employment by the defendant in this: That, while the said Fritz R. Havard was sitting or standing on said schooner, engaged in the business of his employer as aforesaid, a tug boat was standing close by, waiting for the purpose of towing away the said barge from which Fritz R. Havard was grading and/or tallying lumber, as These sections must be examined and inter- aforesaid, as soon as its unloading should be (100 So.) ing other barges tied near defendant's said plant, and from which lumber had been or was about to be unloaded into said plant, and that while said tug boat was so standing by a pistol or rifle, being handled or cleaned thereon by a negro whose name is unknown to claimant, but who was then and there the master or a member of the crew of said tug, accidentally exploded or was accidentally fired, and the ball or bullet therefrom struck the said Fritz R. Havard in the head, wounding him so badly that within, to wit, a very few hours he died." formance of a maritime service. We entertain no doubt that the service in loading and stowing a ship's cargo is of this character. Upon its proper performance depend in large measure the safe carrying of the cargo and 'the safety of the ship itself; and it is a service absolutely necessary to enable the ship to discharge its maritime duty." The same reasoning will apply to tallying and grading lumber by a person standing on a barge located in a navigable stream -Mobile river-while it is being unloaded and carried into the defendant's mill on the bank of the river. The locality is maritime (standing on a barge lying in the Mobile river, a navigable stream, when injured); and the service being rendered by the deceased when injured was likewise maritime (tallying or grading, or both, lumber as it was unloaded from the barge into the mill of the defendant on the bank of the river. Because this work of checking or tallying the lumber by the decedent could have been performed by him on the land does not ren. der the service nonmaritime. It appears on the face of the amended complaint that the employé, Havard, received the injury from which he died while he "was sitting or standing upon a laden schooner in Mobile river alongside of a barge which in turn was moored in Mobile river to the dock," and while he "was engaged for said employer in grading and/or tallying lumber then being unloaded from said barge," and from thence carried or carted into the yard or mill of defendant. When injured and killed deceased was sitting or standing upon a laden schooner in Mobile river, and was employed for his said employer, the defendant, in grading and The first and second headnotes in State tallying, or in grading or in tallying, lumber Ind. Com. v. Nordenholt Corp., 259 U. S. then being unloaded from the barge. The 263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. L. locus of the injury was on a barge moored | R. 1013, read as follows: in the Mobile river, a navigable stream, which makes it maritime. He was when injured standing on a laden schooner in the Mobile river. Were the services being performed by the employé at the time of the injury under contract with the defendant maritime? It so appears from the amended complaint. The deceased, Havard, was at the time of the injury grading and tallying, or grading or tallying, lumber then being unloaded from the barge for the defendant's mill. This service is necessary in unloading ships or barges laden with lumber. In Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, Chris Jensen, the deceased, was engaged on board of a ship in unloading it at the wharf in navigable waters in New York when killed; the court saying: "The work of a stevedore in which the deceased was engaging is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction." In Atlantic Transport Co. v. Imbrovek, 234 U. S., 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157, the court wrote: ""The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the localitythe high seas, or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.' The libelant was injured on a ship, lying in navigable waters, and while he was engaged in the per * board a vessel lying in navigable waters, sus"(1) When an employé, while working on tains personal injuries there and seeks damages from his employer, the liability of the employer must be determined under the maritime law. "(2) But where the injuries occur while the employé is engaged in unloading the vessel on land the local law has always been applied." In Newham v. Chile Expl. Co., 232 N. Y: 37, 133 N. E. 120, 25 A. L. R. 1018, the court said: "The weighing, inspecting and measuring of the cargo of a vessel constitute maritime service," -and quoted the following from Robinson V. The C. Vanderbilt (D. C.) 86 Fed. 785: "Whatever is done to operate a ship, to aid sion, viz., to take freight or passengers, to her physically in the performance of her miscarry freight or passengers, to unload freight or passengers, and to preserve her while so doing, is a maritime service." The appellant insists this question was settled in her favor by the principle declared in U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 25 Grant-Smith-Porter Ship Co. v. Rohde, 257 A. L. R. 1008. We do not think it is a parallel case to this one. There a carpenter was employed to aid in the construction of a ship which was partly completed, and had been launched into the water, but had not entered upon marine service. While engaged in completing the vessel, and while it was moored in navigable waters, the carpenter was injured on board the vessel, and the court held the Workmen's Compensation Act of the state of Oregon (Laws 1913, c. 112) applied, because the contract to build or aid and statutes. This is clearly pointed out in in building the ship was nonmaritime, al- Grant-Smith-Porter Ship Co. v. Rohde, 257 though the tort which produced the injuries U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 25 was maritime, as it occurred on navigable A. L. R. 1008; The Mercedes de Larrinaga waters. The plaintiff in that case was in- | (D. C.) 293 Fed. 251. See, also, Southern Pac. jured upon a navigable stream, but the service being performed by him at the time was nonmaritime; the ship had not been completed, had not been delivered, had not entered the maritime service, so the Workmen's Compensation Act of the state of Oregon applied. Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Western Fuel Co. v. Garcia, 257 U. S. 233, 42 Sup. Ct. 89, 66 L. Ed. 210. So, under these authorities, we must hold that the locus of the tort was maritime, the services which the decedent was performing at the time he was injured, which caused his death, were maritime, and the contract of employment was in its very nature maritime; and the Workmen's Compensation Act has no application. The jurisdiction of the federal court in admiralty in such matters was exclusive when the Workmen's Compensation Act was approved on August 23, 1919, to go into effect on January 1, 1920, and this act does not attempt to confer jurisdiction of such actions on the state courts. Knickerbocker Ice Co. v. Stewart, 258 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Western Fuel Co. v. Garcia, 257 U. S. 233, 42 Sup. Ct. 89, 66 L. Ed. 210; State Ind. Comm. v. Nordenholt Corp., 259 U. S. 263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013; The Mercedes de Larrinaga (D. C.) 293 Fed. 251. It appears on the face and in the body of the complaint as amended that the court has no jurisdiction of this action under the Workmen's Compensation Act. The demurrers of the defendant point it out, and the court did not err in sustaining them. No necessity exists for us to discuss and consider the other questions presented by the record, assigned as errors and insisted on in brief of appellant. The judgment is affirmed. ANDERSON, C. J., and SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. It appears from the complaint the employer, the defendant, was a lumber dealer operating a lumber yard and lumber planing mill on the bank of this navigable stream in the city of Mobile, and was, to use the language of the complaint, regularly receiv ing large shipments of lumber by barges docking at the wharf in front of or adjoining his plant, the barges being towed or brought to the wharf by tugs or tow boats on this navigable stream. The employé, the deceased, was employed by the defendant in that business in the "capacity of lumber inspector or grader"; his duty was to grade and tally the lumber as it was unloaded from these barges and carried to the defendant's mill or yard. This made the contract of employment in its very nature maritime. It is true the parties in this cause under the complaint contracted under the Workmen's Compensation Act; but the locality of The employer was engaged in the operathe injury was maritime; the service being tion of a planing mill and lumber yard on performed by the deceased at the time of the the banks of the Mobile river, and the eminjury was maritime, and the contract of ployé was engaged in grading or tallying the employment was in its nature maritime. If lumber as it was being unloaded for his emthis court made application of this statute to ployer's mill. The complaint discloses that the contract under these circumstances, it the parties had placed themselves within would necessarily work material prejudice the provisions of the Workmen's Compensato a "characteristic feature of the general maritime law," and it would interfere with the proper harmony or uniformity of that law in its interstate relations, which is not GARDNER, J. (dissenting). I am of the opinion the amended complaint shows a case which should properly proceed in the state court, and that the judgment of the court below should therefore be reversed. tion Act, and it therefore appears that the contract of employment had in contemplation compensation under said act in the event of injury to the employé. The em (100 So.) was moored in Mobile river alongside of a barge which was also moored in the river to the dock at the employer's plant. He was engaged in tallying the lumber then being unloaded when the accident occurred, resulting in his death. The majority opinion seems to rest exclusively, as I read and understand it, upon the fact that at the time of the injury the employé was upon a schooner in navigable waters. But in cases of this character the locality of the injury is not the sole and exclusive test; the services to be performed must also be of a maritime nature. This was illustrated in Grant-Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, which, in principle, in my opinion, controls in the instant case. At the time of the injury Rohde, in the case just cited, was working upon a vessel in navigable waters, but his employment was not of a maritime nature. It was therefore held that the Workmen's Compensation Law of the state of Oregon applied, the court saying: "The contract for constructing the Ahala was nonmaritime, and although the incompleted structure upon which the accident occurred was lying in navigable waters, neither Rohde's general employment, nor his activities at the time had any direct relation to navigation or comThis conclusion accords with merce. * Southern Pacific Co. v. Jensen, 244 U. S. 205; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372; Union Fish Co. v. Erickson, 248 U. S. 308; and Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. In each of them the employment or contract was maritime in nature and the rights and liabilities of the parties were prescribed by general rules of maritime law essential to its proper harmony and uniformity. Here the parties contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.” In Ind. Comm. v. Nordenholt, 259 U. S. 263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. L. R. 1013, many of the authorities from the United States Supreme Court discussing this question were reviewed, and it was pointed out wherein the New York courts had misapplied many of these decisions. Among the cases commented upon is that of Sou. Pac. Co. v. Jensen, supra, upon which much stress is laid in the majority opinion in the instant case, and wherein it is pointed out that the work of a stevedore, in which service Jensen was engaged, was maritime in its nature, his employment a maritime contract, and the injury likewise maritime. Here the contract is not of a maritime nature; the employé was only engaged in grading and tallying lumber, which may have been done as well upon the docks as upon the schooner, where he happened to be. In the Rohde Case, supra, the court called attention to the fact that the contract of employment for constructing the vessel, the Ahala, was nonmaritime. So, also, in the instant case, the employer was engaged in the business of running a planing mill and lumber yard; certainly a nonmaritime business. Therefore it appears that neither the employment nor the activities of the employé, or those of his employer, have any direct relation to navigation or commerce. He and his employer had contracted with reference to compensation under the Workmen's Compensation Law of the state, and the application of our state law can certainly in no manner materially affect any rules of the sea or interfere with the uniformity of the maritime law. As previously stated, and as recognized in the majority opinion, the work of grading or tallying this lumber may have been performed as well upon the land as upon the schooner in the navigable waters. Rohde's Case, supra, is decisive to the effect that the mere fact the employé happened to be at the time upon the navigable waters does not make out a case for admiralty jurisdiction. I respectfully submit there is nothing in this case upon which to rest the admiralty jurisdiction, save alone the locality of the injury, which, as above shown, is insufficient in the absence of services of a maritime nature. I consider the holding of the majority a matter of great importance, and, having become fully persuaded that the state courts have full jurisdiction, I have deemed the question of sufficient interest to briefly state my views. I respectfully dissent. ! PETERS v. PILCHER. (4 Div. 124.) 1. Landlord and tenant deny landlord's title. In general a tenant cannot deny his landlord's title. 2. Landlord and tenant 75(1)-Lease held to permit subletting. Lease for years, not requiring lessee to move on the premises, or build a room to the house, nor restricting subletting, impliedly permitted subletting. 3. Evidence 441 (4)-Written lease presumed to contain entire contract merging previous agreements. With certain exceptions, a written lease is presumed to contain the entire contract, all the stipulations and promises the parties intended 'to make and assume, merging all previous negotiations and parol agreements. 4. Evidence ~441(4) Parol agreement against subletting, inadmissible to contradict lease implying the right. Where, under written lease, lessee had implied right to sublet, evidence of a parol agree'ment to the contrary, in an action for rent, was inadmissible. 5. Evidence 424-Strangers to written instrument may contradict it by parol evidence. Strangers to a writing, and not bound thereby, may, when it is introduced to affect their rights, contradict it by parol, the parol evidence rule applying to parties to the instrument only. 6. Evidence 1922, this litigation followed, resulting in a judgment against him-from which this appeal is prosecuted. [1] The defendant fully recognized the general rule that a tenant is not permitted to deny the title of his landlord, and made an effort to bring his case within some exception to the rule, as where the landlord's title has been extinguished or changed for the worse subsequent to the rental contract-citing, among other authorities, Sadler v. Jefferson, 143 Ala. 669, 39 South. 380; Davis v. Williams, 130 Ala. 530, 30 South. 488, 54 L R. A. 749, 89 Am. St. Rep. 55. [2] It appears that the plaintiff had previously rented this land from the owner, J. D. Holman, for a period of five years and this written lease was introduced in evidence. It bears date December 12, 1921, and bears every evidence of being a full and complete contract between the parties, and is as follows: "Ozark, Ala. Dec. 12, 1921. "State of Alabama, Dale County. This trade and agreement made by and between J. D. Holman as party of the first part and S. R. Pilcher as party of the second part witnesseth that party of the first part has this day rented to party of the second part his place in Geneva county known as the Price place for a cerm of five years covering the crop years 1922, 1923, 1924, 1925 and 1926 for which party of the second part has this day signed his several rent notes for $112.50 each due on Oct. 1 of each year. "Party of the second part rents the place just as it is and agrees to do all necessary work that is needed on the place at his own expense, and is to keep the place in good state of re 424-Sublessee not stranger to pairs and to keep the fences terraces, and other lease so as to contradict it by parol. In lessee's action for rent against sublessee, 'sublessee having, and exercising, right of possession, was not stranger to lessee's lease with the owner, in the sense that he could introduce parol evidence to vary and contradict its terms to defeat recovery. Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge. Action on rent note by S. R. Pilcher against E. D. Peters. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed. H. L. Martin, of Ozark, for appellant. GARDNER, J. Appellant rented from appellee for the year 1922 a farm known as the J. D. Holman place. He went into possession, cultivated the land, and failing to pay the rent to appellee, for which he had executed his promissory note due September 1, repair work in good shape. "It is agreed that all litter and stalks are to be turned under for fertilizer each year, and not burned and no wood nor lightwood is to be hauled off the place while this contract is in force. "Party of the second part agrees to take good care of the place in every way just as if it were his own. "Written in duplicate on this the day above written. "Witness: "J. G. Whitman. J. D. Holman. "S. R. Pilcher." It is to be observed the contract contains no provision requiring the lessee to move upon the premises or to build a room to the house, or restricting the lessee as to the right of subletting the property. Under the contract as thus entered into between the parties the tenant had the right to underlet the premises. "As the owner of a well-defined interest or estate in lands, a tenant for years, unless restrained by the covenants and conditions in his lease, may underlet the premises, or any part |