Johnston v. Kennecott Copper Corp

Decision Date18 February 1918
Docket Number3031.
Citation248 F. 407
PartiesJOHNSTON v. KENNECOTT COPPER CORP.
CourtU.S. Court of Appeals — Ninth Circuit

John Lyons, of Seattle, Wash., and E. E. Ritchie and J. L. Reed both of Valdez, Alaska, for plaintiff in error.

R. E Capers, of North Yakima, Wash., and E. Lyders, of San Francisco, Cal., for defendant in error.

The plaintiff below prosecutes error. While working for defendant in its mill, he suffered the loss of his right foot, and he alleges that the injury was the result of defendant's negligence. Plaintiff was at the time 20 years of age. The defendant by its answer pleaded the Workmen's Compensation Act of Alaska, asserting its liability to be $1,440 only, for which amount judgment was rendered against it and in favor of plaintiff. The plaintiff complains here of the action of the court in recognizing the validity of the act, and in rendering judgment in pursuance of its provisions, and not according to his alleged common-law remedy.

The act in question renders any person or corporation employing five or more persons 'in connection with mining operations carried on' in the territory, who shall not have given notice in manner specified to reject the provisions of the act, liable to pay compensation, in accordance with a schedule adopted, to employes receiving personal injury, or to their beneficiaries in case death results from accident in the course of the employment, provided the employe so injured has not, prior to injury, given notice of his or her election to reject the provisions of the act in manner as prescribed.

The prescribed compensation for loss of a foot is $1,440. No compensation is allowed in any case where the injury is occasioned by willful intention to bring about the casualty or where intoxication is the proximate cause. Provision is made for beneficiaries of a deceased person, whose death occurred through injury as an employe, to file their claim for compensation in writing, verified by the oath of the claimants, and for a hearing before the district court, or before a jury if one is demanded. Provision is further made whereby the employer may, in anticipation of conflicting claims of such beneficiaries, file a bond in the sum of $6,000, or make deposit of that amount to abide the result of the controversy. Actions for recovery of compensation as per the schedule may be maintained in the courts of the territory, and attachment may issue on compliance with prescribed conditions. The employe is inhibited from waiving by agreement any of his or her rights to compensation under the act.

The employer is conclusively presumed to have elected to pay compensation in accordance with the provisions of the act, unless notice in writing to the contrary shall have been given to the employe by recording said notice with the United States commissioner in whose precinct the employer's operations are carried on; the commissioner to be paid a fee of $1.50 for the recording. In case the employer shall exercise the right to reject the terms and provisions of the act, it is declared that he shall not escape liability, and that he shall not be entitled to the defenses of assumption of risk, negligence of coemploye, or contributory negligence, unless such negligence was the result of willful intent to cause the injury, or the result of intoxication; and in actions against the employer, where he has rejected the provisions of the act, it is presumed that the injury was the first result and growing out of the negligence of the employer, and that such negligence was the proximate cause of the injury, the burden of proof resting upon the employer to rebut the presumption.

Employes are conclusively presumed to have elected to accept compensation in accordance with the provisions of the act until notice in writing is served upon the employer or his agent in person, which notice is required to be recorded, as in the case of an employer giving notice of rejection. Such notice must be accompanied by an affidavit thereon showing the date upon which the same was served upon the employer. In cases where the employe, having rejected the provisions of the act, brings action to recover, the employer is accorded the right to plead and rely upon any and all defenses, including those at common law, including assumption of risk, negligence by coservant, and contributory negligence: Provided, however, that if the employe sustains injuries as a result of the employer's failure to exercise reasonable care to maintain safety devices required by statute, or of the violation of any statutory regulations relating to the safety of employes, the doctrine of assumed risk shall not apply. It is also provided that, where both the employer and the employe have rejected the terms of the act, the employe shall have the same right of action as though the employer had not rejected the provisions of the act.

By section 35 either employer or employe may waive rejection of the terms of the act in the same manner as they may signify their election to reject. The thirty-ninth section provides that 'the phrase 'mining operations,' whenever used in this act, shall be held to include all work in connection with underground workings, underground mines, open cut working, surface working, stamp mills, roller mills, chlorination processes, cyanide processes, coke ovens, all reduction work of any kind or character, and all work performed on or for the benefit of any mine, mining claim, or claims, whether quartz or placer, and the phrase shall be held to include development and construction work, as well as work carried on in connection with actual mining or milling.'

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

WOLVERTON District Judge (after stating the facts as above).

The plaintiff challenges the validity of the Alaska act, on the ground that it denies the employe the equal protection of the law, and is in violation of section 9 of the Organic Act of the territory of Alaska, inhibiting the Legislature to 'grant to any corporation, association or individual any special or exclusive privilege, * * * or franchise without the affirmative approval of Congress. ' Comp. St. 1916, Sec. 3536.

The particular features of the act which it is insisted render it nugatory are: First, that it is class legislation; second, that it is discriminatory in its provisions; third, that it possesses no characteristic of industrial insurance and no provision for payment of compensation; that it creates no official authority for adjustment of claims, but merely compounds a schedule of payments to which the injured is entitled, and is a limitation of liability on the part of the employer.

The suggestion that the act is in violation of section 9 of the Organic Act of the territory is not seriously pressed in the argument and briefs of counsel. Nor can it avail plaintiff, for it is manifest that the act grants neither privilege nor franchise to the mining companies of Alaska.

Counsel for defendant urges that the Fourteenth Amendment to the federal Constitution can have no application in the present controversy, because the amendment inhibits state action as it regards the denial of the equal protection of the laws, and does not, it is insisted, restrict the legislative action of a territory. This question may be waived, without deciding it, as we have concluded that plaintiff cannot prevail upon either of the questions presented in his behalf.

For convenience, the third objection will first receive our attention. The gist of this objection to the validity of the act is that it contains no feature of industrial insurance and no provision for the payment of compensation. While the act does not contain any provision for industrial insurance, it does contain regulations for securing payment of the compensation for injuries. A bond or cash deposit by the mining company is provided for, where beneficiaries of deceased persons are concerned, out of which to meet the compensation to which they are entitled; and in an action for the scheduled compensation, the employe has his attachment for securing the demand. So it cannot be said that the employe is without provision looking to the eventual payment of his claim. As to the absence of any insurance feature, the late cases of the Supreme Court proceed upon a reasoning, in support of Employers' Liability Acts, which appears to us to be ample to support the present statute.

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6 cases
  • Bradford Electric Light Co. v. Clapper
    • United States
    • U.S. Court of Appeals — First Circuit
    • June 29, 1931
    ...96 N. E. 308; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49; American Radiator Co. v. Rogge, supra; Johnston v. Kennecott Copper Corp. (C. C. A.) 248 F. 407; Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 460, 121 A. 828; Crane v. Leonard, Crossette & Riley, 214 Mich. 2......
  • Gauthier v. Campbell, Wyant & Cannon Foundry Co., 33
    • United States
    • Michigan Supreme Court
    • July 11, 1960
    ...engaged in mining. The court held the classification reasonable and a 'matter for legislative discretion.' Johnston v. Kennecott Copper Corporation, 9 Cir., 248 F. 407, 160 C.C.A. 417. See, also, Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 571, 35 S.Ct. 167, 59 L.Ed. And in the first case ......
  • Davis v. P. E. Harris & Co.
    • United States
    • Washington Supreme Court
    • August 15, 1946
    ... ... brought under it. At the time Martin v. Kennecott Copper ... Corporation, D.C., 252 F. 207, 208, was decided in the ... Appeals of this circuit. Johnson v. Kennecott Copper ... Corp., 248 F. 407, 160 C.C.A. 417. The provisions ... [171 P.2d 1019] ... ...
  • Martin v. Kennecott Copper Corp.
    • United States
    • U.S. District Court — Western District of Washington
    • July 11, 1918
    ... ... but local, and the forum is fixed, and the remedy may not be ... sought here. Southern Pac. Co. v. Dusablon, 48 ... Tex.Civ.App. 203, 106 S.w. 766 ... The act ... in issue has been sustained by the Circuit Court of Appeals ... of this circuit. Johnston v. Kennecott Copper Corp., ... 248 F. 407, ... C.C.A ... the provisions of the law ... enter into and become part of the contract of employment as ... fully as though stipulated therein. McCracken v. Hayward, ... 2 How. 608, 11 L.Ed. 397 ... The ... motion of the defendant ... ...
  • Request a trial to view additional results

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