218 P. 663 | Cal. | 1923
This proceeding in review to annul an award of the Industrial Accident Commission, upon the ground that it acted in excess of its jurisdiction, presents much the same question as that considered in Alaska Packers Assn. v. IndustrialAcc. Com. et al., ante, p. 763 [
Elza A. Denny was employed as a dredger deck-hand and launch operator by the Los Angeles Dredging Company. His work was performed mainly upon a dredger operating on navigable waters at Newport harbor, in this state. He was drowned on the night of April 15, 1921, in attempting to proceed from the dredger to the shore in a motor launch, while engaged upon an errand in connection with his employment. The launch was afloat at the time upon, and the accident occurred in, navigable waters. The employer, Los Angeles Dredging Company, was protected by workmen's compensation insurance at the time of Denny's death, the insurance carrier being this petitioner. The policy of insurance specifically covered all occupations of the assured in connection with its dredging work, both afloat and on shore, under the provisions of the California Workmen's Compensation Act. It also provided insurance against liability of the employer under employers' liability *772 laws for damages for negligence where the compensation act was not applicable, including any liability accruing under the law maritime. At the time the insurance policy was executed and delivered by petitioner to the dredging company there was attached thereto an indorsement in writing which provided that, in consideration of the special rate at which the policy was issued, it was agreed that when claims were made for bodily injuries or for death accidentally suffered by employees of the assured covered by the policy the Insurance Company, subject to the limitations of its stipulated liability, would pay such injured employees, or, if deceased, the dependents of such employees, such benefits as they would be entitled to under the Workmen's Compensation and Safety Act of California if said claim came under the jurisdiction of the Industrial Accident Commission of California, provided that such benefits should be so paid only when the employees or dependents accepted said sums in full settlement of their respective claims and should sign releases in favor of the dredging company and the insurer.
After the death of Denny, his surviving widow, who was his sole dependent, duly executed and tendered a release of all causes of action against petitioner and the insurance carrier, "arising under the law maritime or any other law, other than for the benefits prescribed by the California Workmen's Compensation Act," upon condition that she be paid the benefits to which she would be entitled under the compensation act if its provisions were applicable to the matter, and agreed to accept any award that might be made by the Industrial Accident Commission, without any contest of such award upon the ground that the alleged maritime nature of the employment of her deceased husband rendered the Workmen's Compensation. Act inapplicable. This tender being refused, she filed her application with the respondent Commission for an adjustment of her claim for death benefits and damages. Answering, the employer and its insurance carrier, who is the petitioner here, took the position that at the time the employee was drowned he fell from a boat which was afloat on navigable waters, and for that reason the subject matter of the application was not within the jurisdiction of the Industrial Accident Commission, and the applicant was not entitled to *773 any of the benefits covered and provided by the Workmen's Compensation Act. It also alleged that the rider or indorsement on the policy, by which it purports to agree to pay workmen's compensation benefits under the Workmen's Compensation Act, was inserted in the policy by mistake. As to the second contention, the Commission found there was no mistake in the issuance of the policy, and that the indorsement or rider was not attached to it by reason of any inadvertence, but was intentionally made a part of the insurance contract. This finding is amply supported by the evidence, from which it is clear that the dredging company desired and obtained the exact policy issued by petitioner, including the provisions, covered by the indorsement. After due proceedings had before the Commission, findings and award were entered in favor of the surviving wife of the employee, allowing her a death benefit in the sum of four thousand nine hundred dollars. [1] The only contention raised by the petition for writ of review is that the respondent, Industrial Accident Commission, was without jurisdiction, for the reason that the injury resulting in the death of the employee occurred upon navigable waters, and that the respective rights of the parties were governed solely by the general law maritime, barring any recovery under the state compensation law.
In support of its position the respondent contends that the California Workmen's Compensation Act can constitutionally be applied to dredgers afloat upon navigable inland waters of the state for the reason that the state law in such case does not materially contravene the application and characteristic harmony and uniformity of the general maritime law in its interstate and international aspects. Respondent also advances the contention that in the instant case the employer elected, under section 70 of the state Workmen's Compensation Act, to have its liability determined under the provisions of that statute by taking out the policy of workmen's compensation insurance issued by the petitioner; and, also, that regardless of the liability or nonliability of the employer personally, the petitioning insurance carrier is liable directly to the employee's widow upon its policy of contract, for which it has received full premium, and is estopped to repudiate its agreement of insurance. The final contention of the respondent Commission is that the application *774 of the provisions of the California Workmen's Compensation Act in this proceeding is sustained by an act of Congress, effective October 6, 1917, amending sections 24 and 256 of the Judicial Code, purporting to extend to maritime workers the protection of state workmen's compensation acts.
It has been the generally accepted view, since the decision of this court in Sudden Christenson v.Industrial Acc. Com.,
"As the logical result of prior decisions we think it follows, that where death upon such waters follows from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libelin personam for the damages sustained by those to whom such right is given. The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts, when following the common law, will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. Southern Pacific Co. v.Jensen, supra."
In Grant Smith-Porter Ship Co. v. Rohde,
"The contract for constructing 'The Ahala' was non-maritime, 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 commerce. Thames Towboat Co.
v. Schooner Francis McDonald,
"The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this Court that it must now be treated as settled (citing cases).
"The Workmen's Compensation Law of Oregon declares that when a workman subject to its terms is accidentally injured *777 in the course of his employment he 'shall be entitled to receive from the Industrial Accident Fund hereby created the sum or sums hereinafter specified and the right to receive such sum or sums shall be in lieu of all claims against his employer on account of such injury or death . . .'
"In Western Fuel Co. v. Garcia we recently pointed out that, as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by state statutes. The present case is controlled by that principle. The statute of the State applied and defines the rights and liabilities of the parties. The employee may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court.
"This conclusion accords with Southern Pacific Co. v. Jensen" and other cases cited. "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; the 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."
The two cases we have just quoted, and many others relating to the application of state laws to maritime contracts and torts, are reviewed and explained in State IndustrialCommission of New York v. Nordenholt Corp. etal.,
From this survey of the cases principally relied upon by the respondent Commission it at once becomes apparent that they do not deal with the exact situation presented by the facts in this proceeding under review. In Western Fuel Co. v.Garcia the court merely held that there being no right of action in admiralty to recover damages for the death of a person, one claiming to be injured by such death might avail himself of a supplemental cause of action provided by state law, and proceeding in admiralty on such cause of actionmay recover. In Grant Smith-Porter Co. v.Rohde the effect of the decision is that an employee of a shipbuilding company at work upon a vessel in course of construction, but which has been launched so as to be within the admiralty jurisdiction, who has contracted with his employer with reference to the workmen's compensation law of the state, the contract for constructing the ship not being maritime, is entitled to compensation for injuries under the state statute, and that remedy is exclusive. The Nordenholt case *779
relates to an injury received upon the land, and holds that under such circumstances, when a compensation act merely supersedes the common law and state statutes touching liability for injuries occurring on land, it does not come into conflict with any superior maritime law. None of these decisions, therefore, has strict application to the case of one who suffers an injury causing death while operating a launch on navigable waters, and whose other principal occupation is that of a deck-hand on a dredger, also afloat and operating in navigable waters. The dredger in this case, being engaged in deepening navigable waters, was "a vessel" within the meaning of title 1, section 3, of the Revised Statutes of the United States. She came within the maritime jurisdiction and the persons engaged upon her and on the launch in such work were "seamen." (Saylor v. Taylor, 77 Fed. 476 [23 C.C.A. 343]; United States v. Holmes (C. C.), 104 Fed. 884.) It was stipulated in open court at the time of the oral argument in this case that the employment of Denny at the time he met his death was of a maritime nature, he being then employed in driving the launch to the mainland for the purpose of taking on as passengers the firemen who were to relieve those then working on the dredger. These facts distinguish this case from Grant Smith-Porter Co. v.Rohde, in which neither the workman's general employment nor his activities at the time of the injury had any direct relation to navigation or commerce. They bring the proceedings squarely within the application of the principles of law laid down in Knickerbocker Ice Co. v.Stewart,
The respondent contends that the employer in the present case elected, under section 70 of the Workmen's Compensation Act, to have its liability determined by that statute when it took out a policy of workmen's compensation insurance with the petitioner. The section provides that the employer may elect to come under the compensation provisions of the act by filing with the Industrial Accident Commission a written statement to that effect. The section also provides that in case any employer is insured against liability for compensation under the act, he shall be deemed to have so elected during the period that such policy shall remain in force, "without filing such written notice with the commission," as to all classes of employees covered by such policy of insurance, anything in the act to the contrary notwithstanding. [3] Assuming that the act of taking out such a policy of insurance ordinarily may have the effect of bringing the employer under the compensation provisions of the act, as provided, it cannot of itself confer jurisdiction on the Commission where, as in this case, exclusive jurisdiction of the matter in controversy is vested in the *781
admiralty court. (Employers' Liability Assur. Corp. v.Industrial Acc. Com.,
[4] The respondent also contends that petitioner has by its contract of insurance, for which it has received full consideration, bound itself to pay the benefits due under the Workmen's Compensation Act to any employee of the dredging company injured about the dredger, or any dependent of a deceased employee killed in the course of its operation, and cannot now refuse to carry out its engagement, both on the principle of a contract for the benefit of a third party and on the principle of estoppel. Such contention would be worthy of serious consideration if made in a court of law having jurisdiction of the subject matter; but it cannot be made an issue where, as in this case, jurisdiction does not exist. Neither a party, nor both parties, can vest the Commission with a constitutional jurisdiction to which it is otherwise a stranger. (King v. Kutner-Goldstein Co.,
[6] The final contention of the respondent Commission, that the provisions of the Workmen's Compensation Act of this state were made applicable to employees engaged in maritime work by the act of Congress amending sections 24 and 256 of the Judicial Code, relating to the jurisdiction of the federal district courts, saving to claimants the rights and remedies under the workmen's compensation law of any state, approved October 6, 1917 (c. 97, 40 U.S. Stats. at Large, 395 [Fed. Stats. Ann., Supp., 1918, pp. 401, 414; U.S. Comp. Stats. Ann., Supp. 1919, §§ 991, 1233]), was considered inSudden Christenson v. Industrial Acc. Com.,supra, and in Knickerbocker Ice Co. v.Stewart, supra. In the latter case, after a comprehensive statement of the effect of the provisions of the federal constitution referred to, the court said (
The award is annulled.
Myers, J., Richards, J., pro tem., Lennon J., Seawell, J., Lawlor, J., and Wilbur, C. J., concurred.
Rehearing denied.
All the Justices concurred.