Ellamar Mining Co. of Alaska v. Possus

• Decision Date: 07 January 1918
• Docket Number: 2949.
• Citation: 247 F. 420
• Parties: ELLAMAR MINING CO. OF ALASKA v. POSSUS.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F. 420

ELLAMAR MINING CO. OF ALASKA v. POSSUS.

No. 2949.

United States Court of Appeals, Ninth Circuit.

January 7, 1918

The defendant in error was the plaintiff in an action in the court below, in which he pleaded two counts. The first was to recover compensation for injuries received by him in the course of his employment in the defendant's mine, and was brought under the provisions of chapter 71 of the Session Laws of Alaska 1915, known as the Workmen's Compensation Act. The second was to recover damages for the aggravation of his injuries and for his suffering by reason of the defendant's neglect to furnish him timely and sufficient surgical care and medical and hospital care; the plaintiff alleging that under the defendant's rules the sum of $1.50 per month had been deducted from his wages for hospital dues, which entitled him to care in a hospital and to competent surgical and medical attendance at the expense of the defendant, in case of his injury or illness arising in the course of his employment. The defendant demurred to the complaint on the ground that the causes of action had been improperly united, and on the further ground that under the first cause of action the plaintiff was entitled to recover all damages which he sustained for aggravation to his injuries through the lack of proper hospital treatment, and that to permit the maintenance of the second count would be to compel the defendant to answer twice in damages for the same cause of action. The demurrer was overruled. The jury by their verdict found for the plaintiff on the first cause of action in the sum of $1,368, and on the second cause of action in the sum of $1.

Section 1 of the Workmen's Compensation Act provides that the employer shall be liable to pay compensation in accordance with the schedule therein adopted to each of his employes 'who receives a personal injury by accident arising out of and in the course of his or her employment. ' The act sets forth a schedule of compensation covering all ordinary and usual injuries arising from accidents in mines resulting in either temporary or permanent disability, and further makes provision for compensation for injuries and disabilities which do not come wholly within any of the specific cases for which provision is made. Section 7 provides: 'The right to compensation for an injury, and the remedy therefor provided by this act shall be in lieu of all rights and remedies as to such injury now existing * * * at common law, or otherwise, and no rights or remedies except those provided for by this act, shall accrue to employes entitled to compensation under this act while it is in effect; nor shall any right or remedy, except those provided for by this act, accrue to the personal or legal representative, dependents, beneficiaries under this act, or next of kin of such employe.' Donohoe & Dimond and W. S. Bonnifield, all of Valdez, Alaska and George E. De Steiguer, of Seattle, Wash., for plaintiff in error.

John Lyons and E. E. Ritchie, both of Valdez, Alaska, for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The defendant contends that, if the plaintiff is entitled to any compensation or damages for his injuries, he must seek the same under the Workmen's Compensation Act alone, and cites Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153, L.R.A. 1916F, 319, a case in which it was held that the purpose of the Industrial Insurance Law of Washington (3 Rem. & Bal. Code, Secs. 6604-- 1 et seq.) was to remove from the courts personal injury actions by employes, and was intended to cover, not only injuries, but all aggravations through negligence of a physician engaged by the master and paid out of sums deducted from the wages of employes. But the Industrial Insurance Law of Washington differs materially from the Workmen's Compensation Act of Alaska. The intention of the Washington law, as expressed in the terms thereof, was to withdraw from private controversy all phases of civil causes for personal injuries to employes, and to abolish the jurisdiction of courts over such causes, and the Supreme Court in the case cited held that the purpose of the act was to end all litigation growing out of, incident to, or resulting from the primary injury, and in lieu thereof to give the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone. Support of that view of the law was found in the fact that provision was made that compensation allowed under the act might be readjusted if aggravation of the disability should take place or be discovered. Again, in Stertz v. Industrial Insurance Com., 91 Wash. 588, 158 P. 256, it was said:

'Ours is not

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