Capetola v. Barclay-White Co., 2397.

• Decision Date: 04 January 1943
• Docket Number: No. 2397.,2397.
• Citation: 48 F. Supp. 797
• Parties: CAPETOLA et al. v. BARCLAY-WHITE CO.
• Court: U.S. District Court — Western District of Pennsylvania

48 F. Supp. 797

CAPETOLA et al. v. BARCLAY-WHITE CO.

No. 2397.

District Court, E. D. Pennsylvania.

January 4, 1943.

John J. McDevitt, Jr., of Philadelphia, Pa., for plaintiffs.

Rawle & Henderson and Joseph W. Henderson, all of Philadelphia, Pa., for defendant.

WELSH, District Judge.

This matter is before the Court upon defendant's motion for judgment notwithstanding a verdict of $7,500 rendered by a jury in favor of the plaintiffs. The case involved an issue of law as to the applicability of the workmen's compensation laws by virtue of the following circumstances.

The minor plaintiff, John Capetola, Jr., was employed as a bricklayer's laborer by John B. Kelly, Inc., in August, 1941, and continued in that employment to December 16, 1941, the date of the accident out of which this case arises. The Kelly company was the brick work subcontractor under the defendant, Barclay-White Company, general contractor for the erection of a pattern shop building at the Philadelphia Navy Yard. The general contractor had erected a platform hoist or elevator adjacent to the building for the raising of materials used in the construction and furnished an operator who ran the engine which provided the power. The hoist was used by the general and all of the subcontractors engaged in the work. The subcontractor Kelly, furnished gasoline for the hoisting engine and was to have the use of the hoist when it was not being used by the general contractor. He also agreed to pay the overtime wages of the operator if it became necessary to operate the hoist beyond the usual working hours.

On December 16, 1941, Capetola was assigned by his employer to work at the navy yard where he was admitted after proper identification. On that day the hoist was being used to raise bricks from the ground to the third floor level. The bricklayers' laborers employed by Kelly wheeled two barrows onto the platform and gave a signal to the operator who caused it to be raised to the desired level. Capetola was stationed at the top level where he wheeled off the full barrows, replaced them with empties and signalled the operator to lower the platform. At about 5 P. M., after he had moved one loaded barrow and was in the act of moving the second, the lift platform fell or was dropped without signal from the third floor to the ground level, carrying him with it and causing him the serious injury for which this suit was brought. The operator of the lift did not appear at the trial and no testimony was offered as to the cause of the fall.

The contract between the general contractor and the subcontractor required the latter to carry workmen's compensation insurance, which was provided. After the accident the plaintiff, his employer and the insurer entered into a compensation agreement, which was filed with the State Workmen's Compensation Bureau, under which compensation was paid to the plaintiff together with medical expenses.

At the trial it was contended by the defendant that the plaintiff's rights were limited to those granted under the workmen's compensation laws and that he had no right of recovery in the present common law action. The issue was reserved and the jury was permitted to pass only upon the question of whether the hoist operator was a loaned servant for whose actions the subcontractor was responsible, and upon the question of negligence. The applicability of the state compensation laws to accidents occurring at the Philadelphia Navy Yard is the controlling issue to be determined.

By legislative act, Feb. 10, 1863, P.L. 24, April 4, 1866, P.L. 96, 74 P.S. § 1 note, the Commonwealth of Pennsylvania consented to the purchase by the United States of the area covered by the Navy Yard and ceded the sovereignty and the right to exercise exclusive jurisdiction thereof, reserving only the right to service of criminal and civil process therein. Congress authorized acceptance of the area (February 18, 1867, 14 Stat. 396), the Secretary of the Navy certified to its acceptance (December 23, 1868), and the certificate was duly recorded in the office of the Recorder of Deeds of Philadelphia on December 24, 1868 (19 J.T.O. 2, Misc.Land Records 208).

The Pennsylvania Workmen's Compensation Act, June 2, 1915, P.L. 736, April 26, 1929, P.L. 829, April 29, 1929, P.L. 853, June 4, 1937, P.L. 1552, 77 P.S. § 1 et seq., established a system of compensation for injuries sustained by employees from all accidents occurring within the Commonwealth, and "accidents occurring to employes whose duties require them to go temporarily beyond the territorial limits of the Commonwealth, not over ninety days, when such employees are performing services for employers whose place of business is within the Commonwealth."

Some question existed as to whether or not persons on government property were entitled to the benefit of the local state laws and on February 1, 1928, Congress passed an act, 45 Stat. 54, 16 U.S.C.A. § 457, providing that "In the case of the death of any person * * * by the neglect or wrongful act of another within a * * * place subject to the exclusive jurisdiction of the United States, within the exterior boundaries of any State, such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action * * * the rights of the parties shall be governed by the laws of the State * * *."

This act appears not to have specifically settled the question of jurisdiction as to compensation and a subsequent act, June 25, 1936, 49 Stat.1938, 40 U.S.C.A. § 290, was passed declaring that the constituted authorities of the several states charged with the enforcement of the state workmen's compensation laws "shall have the power and authority to apply such laws to all lands and premises owned or held by the United States of America by deed or act of cession, by purchase or otherwise, which is within the exterior boundaries of any State, and to all projects therein in the same way and to the same extent as if said premises were under the exclusive jurisdiction of the State * * * and the United States hereby vests in the several States within whose exterior boundaries such place may be, insofar as the enforcement of State workmen's compensation laws are affected, the right, power, and authority aforesaid * * *."

The plaintiff denies the applicability of that act, contending that only the state laws in effect at the time of the cession continue in force within the ceded territory, and that acts passed subsequently are not effective unless expressly made so by Congressional act. James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 84 L.Ed. 596, 127 A.L.R. 821. He further contends that the 1928 Act of Congress does not apply because it refers only to actions at law for injuries and not...