Doey v. Clarence P. Howland Co.

Citation120 N.E. 53,224 N.Y. 30
PartiesDOEY v. CLARENCE P. HOWLAND CO., Inc., et al. Appeal of STATE INDUSTRIAL COMMISSION.
Decision Date04 June 1918
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Claim under the Workmen's Compensation Law by Margaret Doey, for herself and children, for the death of Patrick Doey, employé, against the Clarence P. Howland Company, Incorporated, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier. From an order of the Appellate Division (182 App. Div. 152,169 N. Y. Supp. 645) reversing by divided court, an order of the State Industrial Commission, the Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), and Jeremiah F. Connor, of Oneida, for appellant.

Merwyn H. Nellis, of Albany, for respondents.

McLAUGHLIN, J.

On the 31st of July, 1916, Patrick Doey, an employé of Clarence P. Howland Company, Incorporated, while engaged in making repairs on the steamship Normandie, lost his life by falling down a hatchway. His widow, on behalf of herself and infant childred, filed a claim with the State Industrial Commission, under chapter 41 of the Laws of 1914, for compensation for his death. The commission recognized the validity of the claim and in March, 1917, made an award directing that the same be satisfied by weekly payments. The employer and insurance carrier acquiesced in the award until May 21, 1917, when the Supreme Court of the United States handed down its decisions in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E. 900, and Clyde Steamship Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116, holding that the New York State Workmen's Compensation Law (Laws of 1914, c. 41 [Consol. Laws, c. 67]), in so far as it applied to contracts maritime in nature, was void, inasmuch as the same was in contravention of article 3, § 2, of the federal Constitution, extending the judicial power of of the United States to all cases of admiralty and maritime jurisdiction; also in contravention of section 9 of the Judiciary Act of 1789, continued in Judicial Code 1911, §§ 24 and 256 (36 Statutes at Large, 1091, 1160, c. 231; Comp. Statutes 1916, §§ 991, 1233), by which the District Courts of the United States are givin ‘exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction; * * * saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.’

After these decisions had been rendered the employer and insurance carrier moved to vacate the award, on the ground that the State Industrial Commission did not have jurisdiction to make the same. The application was denied and an appeal then taken to the Appellate Division, where the determination of the commission was, by divided court, reversed, and the award vacated. From this order the Industrial Commission appeals to this court.

Two questions are presented: (a) Was Doey, at the time of his death, engaged in the performance of a maritime contract? (b) If so, were the respondents, after having recognized the validity of the award by making payments thereon and not appealing therefrom, in a position to question the jurisdiction of the commission?

[1] If the first question be answered in the affirmative, then is necessarily follows from the decisions of the Supreme Court of the United States above referred to that the commission had no authority to make the award in question. In determining whether a contract be of maritime nature, locality is not controlling, since the true test is the subject-matter of the contract-the nature and character of the work to be done. Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319.

[2] In torts the rule is different. There jurisdiction depends solely upon the place where the tort was committed, which must have been upon the high seas or other navigable waters. Atlantic Transport Co. of W. Va. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208,51 L. R. A. (N. S.) 1157.

[3] An award under the Workmen's Compensation Law is not made on the theory that a tort has been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. Matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158. The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the employé be injured, will pay to him a certain sum to compensate for the injuries sustained, or, if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrongdoing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment.

[4] In the present case, upon the conceded facts, I am of the opinion that Doey was, at the time he met his death, engaged in the performance of a maritime contract. His employer had taken a contract to repair an ocean-going vessel, preparatory to its taking on a cargo of grain. Doey was one of several carpenters employed to make the necessary changes. He was at the time he was killed engaged in such work on a steamship then in navigable waters. The contract to make the changes was certainly maritime in its nature. Preparing a steamship to receive a cargo is as much maritime in nature as putting the cargo on or taking it from the ship. Nor was the nature of the contract changed in any way because the contractor did not actually do the work himself, but employed others to do it for him. Doey's contract of employment was just as much of a maritime nature as was that of his employer. Any doubt that might have existed that an employé of a contractor to load a ship is, while thus engaged, in the performance of a maritime contract, was settled by the decision in Atlantic Transport Co. of W. Va. v. Imbrovek, supra. There, Mr. Justice Hughes, who delivered the opinion of the court, referring to the work of a longshoreman, said:

‘The libelant was injured on a ship, lying in navigable waters, and while he was engaged in the performance 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...

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    ...did not exist as a matter of law. This question has been before the courts of New York in many cases. In Matter of Doey v. Clarence P. Howland Co., 224 N.Y. 30, 120 N.E. 53, 55, the court stated the rule as follows: "The general rule is that lack of jurisdiction to render a judgment or dete......
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