215 N.Y. 514, Jensen v. Southern Pac. Co.

Citation:215 N.Y. 514
Party Name:In the Matter of the Claim of MARIE JENSEN, Respondent, v. SOUTHERN PACIFIC COMPANY, Appellant.
Case Date:July 13, 1915
Court:New York Court of Appeals
 
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215 N.Y. 514

In the Matter of the Claim of MARIE JENSEN, Respondent,

v.

SOUTHERN PACIFIC COMPANY, Appellant.

New York Court of Appeal

July 13, 1915

Argued June 15, 1915.

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COUNSEL

Norman B. Beecher and Ray Rood Allen for appellant. The Workmen's Compensation Law deprives the employer of property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States. (Ives v. South Buffalo Ry. Co., 201 N.Y. 271.) The Workmen's Compensation Law has no application where employer and employee are engaged wholly in interstate commerce. If held applicable, it is unconstitutional in that it imposes a burden upon interstate commerce. (McCabe v. A., etc., Ry. Co., 235 U.S. 151; Connole v. N. & W. Ry. Co., 216 F. 823; G., H. & S. A. Ry. Co. v. Texas, 210 U.S. 217; P. & S. S. S. Co. v. Pennsylvania, 122 U.S. 326; S. R. Co. v. Cope, 235 U.S. 197; Adams Express Co. v. New York, 232 U.S. 14.) Congress has established a rule of liability applicable in this case; the Workmen's Compensation Law has no application to this injury. (The Passaic, 190 F. 644; Erie R. R. Co. v. Jacobus, 221 F. 335; Pederson v. D., L. & W. R. R. Co., 229 U.S. 146; Barlow v. Lehigh V. R. R. Co., 214 N.Y. 116; Schuede v. Zenith S. S. Co., 216 F. 566.) The act is not applicable because the claimant was engaged in the operation of a vessel of another state used

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in interstate commerce. (Pacific S. S. Co. v. Schmidt, 214 F. 513; The Strathnairn, 190 F. 673.)

William L. Visscher, Robert E. Whalen and H. Leroy Austin for New York Central and Hudson River Railroad Company. The act entitled Workmen's Compensation Law (L. 1914, ch. 41) is unconstitutional, being in contravention of the provisions of the Fourteenth Amendment of the Federal Constitution. (Ives v. South Buffalo Ry. Co., 201 N.Y. 271; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571; Hotel Bond Co. Appeal, 93 A. 245.) Under the Federal Employers' Liability Act, which alone measures claimant's right to a recovery, the employer is liable only for negligence, in the absence of which there is no liability whatever. (Second Employers' Liability Cases, 223 U.S. 1; M. C. R. R. Co. v. Vreeland, 227 U.S. 59; St. L., I. M. & S. Ry. Co. v. Hesterly, 228 U.S. 702; S. L. & S. F. Ry. Co. v. Seale, 229 U.S. 156; N. C. R. R. Co. v. Zachary, 232 U.S. 248; Taylor v. Taylor, 232 U.S. 363.)

Egburt E. Woodbury, Attorney-General (E. C. Aiken and Harold J. Hinman of counsel), for respondent. The Workmen's Compensation Law does not offend against the provisions of the Constitution of the United States. (State ex rel. Davis-Smith Co. v. Clausen, 117 P. 111; Young v. Duncan, 106 N. E. Rep. 1; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571; Cunningham v. N.W. Imp. Co., 44 Mont. 108; Memphis C. O. Co. v. Tolbert, 171 S.W. 309; Holden v. Hardy, 169 U.S. 366; Legal Tender Cases, 12 Wall. 457; Walker v. Sauvinet, 92 U.S. 90; A., T. & S. F. R. R. Co. v. Matthews, 174 U.S. 96; Bertholf v. O'Reilly, 74 N.Y. 509.) The Workmen's Compensation Law was intended to apply to the accident and disability occurring to this longshoreman. (Stoll v. P. C. S. S. Co., 205 F. 169; Chiles v. C.

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& O. Ry. Co., 218 U.S. 71; Cooley v. Port Wardens, 12 How. [[U. S.] 299; Atlantic Transport Co. v. Imbrorek, 234 U.S. 52.) The Workmen's Compensation Law is not in conflict with any legislation of Congress over interstate commerce, for none has been enacted, nor is it in conflict with the jurisdiction of the admiralty courts, for Congress has not yet made the jurisdiction of admiralty over torts on navigable waters exclusive of all actions by the states. (The Lottawanna, 21 Wall. 558; Butler v. Boston Steamship Co., 130 U.S. 527; Matter of Garnett, 141 U.S. 1; United States v. Bevans, 3 Wheat. 336; People v. Welch, 141 N.Y. 266; Manchester v. Massachusetts, 139 U.S. 240; McCready v. Virginia, 94 U.S. 391; The Abbey Dodge, 223 U.S. 166; Erie R. R. Co. v. Williams, 233 U.S. 685; The Moses Taylor, 4 Wall. 411; Hine v. Trevor, 4 Wall. 555.) The Federal Employers' Liability Law does not apply to the defendant, as the defendant, so far as this case is concerned, is a steamship company and not a railroad company. (Walker v. Clyde S. S. Co., 215 N.Y. 529.)

MILLER, J.

The claimant's husband was killed on August 15th, 1914, while employed in unloading the steamship El Oriente which was berthed alongside a pier in the Hudson river. When the accident occurred he was moving an electric truck upon a gangway connecting the vessel with the pier. The appellant, a corporation of the state of Kentucky, is a common carrier by railroad. It also owned and operated said steamship, which plied between New York and Galveston, Texas. It does not appear that the steamship was in any way operated in connection with a line of railroad, and in its report of the accident the appellant stated its business to be 'transportation by steamships engaged solely in interstate commerce.' We are required on this appeal, first, to construe the Workmen's Compensation Law (Chap. 67 of the Consolidated Laws; L. 1914, ch. 41) in so far as it relates

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to this case, and, second, to determine its constitutional validity. The scheme of the statute is essentially and fundamentally one by the creation of a state fund to insure the payment of a prescribed compensation based on earnings for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments. The state fund is created from premiums paid by employers based on the payroll, the number of employees and the hazards of the employment. The employer has the option of insuring with any stock corporation or mutual association authorized to transact such business, or of furnishing satisfactory proof to the commission of his own financial ability to pay. If he does neither he is liable to a penalty equal to the pro rata premium payable to the state fund during the period of his non-compliance and is subject to a suit for damages by the injured employee, or his legal representative in case of death, in which he is deprived of the defenses of contributory negligence, assumed risk and negligence of a fellow-servant.By insuring in the state fund, or by himself or his insurance carrier paying the prescribed compensation, the employer is relieved from...

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