Davis v. P. E. Harris & Co.
| Decision Date | 15 August 1946 |
| Docket Number | 29744. |
| Citation | 25 Wn.2d 664,171 P.2d 1016 |
| Court | Washington Supreme Court |
| Parties | DAVIS v. P. E. HARRIS & CO. |
Department 2
Action under the Alaska Workmen's Compensation Act by Perry Davis, claimant, for the death of his son, opposed by P. E Harris & Company, employer. From an adverse judgment claimant appeals.
Judgment affirmed.
Appeal from Superior Court, King County; James B. Kinne, judge.
Griffin & Gershon and Russell F. Stark, all of Seattle, for appellant.
Skeel McKelvy, Henke, Evenson & Uhlmann, of Seattle, for respondent.
The appellant's brief states that the sole question involved on this appeal is as follows:
'Is the action of an injured workman under the Alaska Workmen's Compensation Act a transitory action that he may bring in the State of Washington notwithstanding the provisions of the Alaska statutes which provide that the action must be brought in Alaska?'
The statement is not quite complete. It should be made so by adding thereto:
--except in those cases where it is impossible to obtain service on the defendant in said territory.
The trial court entered the following findings of fact:
'I. That at all times herein mentioned defendant was and is a corporation duly organized and existing under the laws of the State of Washington and maintaining its principal office and place of business at Seattle, Washington; that defendant's principal business is canning salmon on land adjoining Alaskan waters.
'II. That in April 1942 the defendant entered into a verbal agreement whereby the deceased Archibald Davis, son of the plaintiff, was to work for the defendant as a member of the crew of one of the defendant's boats, used exclusively in its said canning operations.
'III. That the said Archibald Davis now deceased accidently lost his life while on said boat so operated by the defendant and that the plaintiff herein has elected to seek compensation under the Alaska Workmen's Compensation Act. That Section 2185 of the Workmen's Compensation Act of Alaska provides:
Inasmuch as the appellant has not brought up the evidence in the cause, he is bound by the above findings in so far as they are factual. He can, and does, attack the trial court's conclusion that the action is not transitory.
The Alaska workmen's compensation act may be found in the Compiled Laws of Alaska of 1933, §§ 2161 to 2203, inclusive. It has been amended at nearly every biennial legislative session since 1933, but we find no subsequent amendment of § 2185, which is the section quoted in the findings of the trial court.
The act is not an industrial insurance act. Unlike our state act, there is no provision for a state fund, nor is any governmental agency set up to administer the act. It contains no provision, such as the following, so often quoted from our own statute:
'* * * The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extrahazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.' (Italics ours.) Rem.Rev.Stat. § 7673.
The Alaska act is elective. The workman may retain his common law remedies, if he so desires, or he may elect to come under the act which provides a schedule of payments to be made by his bonded employer in case of injury or death. In case default as to such payments occurs, he may recover them by court action. In short, the Alaska act simply creates a new remedy, a purely statutory remedy. It would seem, since the legislature was in no way bound to create this new remedy, that it could limit it as it pleased, particularly since no workman is compelled to come under that act. But this is to assume the answer to the question submitted for our decision.
Originally, the act was more drastic as respects the venue of actions brought under it. At the time Martin v. Kennecott Copper Corporation, D.C., 252 F. 207, 208, was decided in the district court for the Western District of Washington, the act provided, as in shown by the following quotation from the opinion:
(Italics ours.)
Upon considering the italicized portion of the above quotation, it will at once be realized that the statute, as it then read, was much more subject to criticism than the present statute; yet, Judge Neterer held as follows:
We do not consider that the three Federal cases upon which the appellant relies, Texas Pipe Line Co. v. Ware, 8 Cir., 15 F.2d 171, United Dredging Co. v. Lindberg, 5 Cir., 18 F.2d 453, and Franzen v. E. I. Du Pont De Nemours & Co., 3 Cir., 146 F.2d 837, lend much, if any, support to his contention. All three actions were brought in Federal courts to enforce rights under the Louisiana workmen's compensation act. In each of them, it was contended, unsuccessfully, that, in that act, the right was so interwoven with the remedy as to make it impossible of enforcement in the Federal courts. The principal controversy seems to have revolved around whether the Federal courts possessed the procedural machinery required to enforce the Louisiana act, which provided, among other things, for a review and modification of judgments more than a year after their entry. The respondent asserts, in his brief, that the Louisiana statute contains no provision even similar to that provision of the Alaska statute with which we are here concerned, and we find nothing in the three opinions to indicate that it does.
We get closer to the question involved in this appeal when we come to Tennessee Coal, Iron & R. R. Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 588, 58 L.Ed. 977, L.R.A.1916D, 685, which the appellant says is 'perhaps the leading case.' It appears, from the opinion in that case, that the Alabama code of 1907, in § 3910, Code 1940, Tit. 26, § 326, made a master liable to an employee when an injury was '* * * caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the master or employer.'
Clearly, this section defined a simple tort liability that any court could readily enforce. It further appears that...
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State of Cal. ex rel. Houser v. St. Louis Union Trust Co.
...powers given, that the remedy must be sought in the designated tribunal.' Similarly in the rather recent case of Davis v. P. E. Harris & Co., 25 Wash.2d 664, 171 P.2d 1016, the Supreme Court of Washington ruled that the courts of that state could not entertain suits to enforce the Workmen's......
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