King v. Pan American World Airways

• Decision Date: 08 December 1959
• Docket Number: No. 16298.,16298.
• Citation: 270 F.2d 355
• Parties: Virginia J. KING, as Administratrix of the Estate of John Elvins King, Appellant, v. PAN AMERICAN WORLD AIRWAYS, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 355 (1959)

Virginia J. KING, as Administratrix of the Estate of John Elvins King, Appellant, v. PAN AMERICAN WORLD AIRWAYS, a corporation, Appellee.

No. 16298.

United States Court of Appeals Ninth Circuit.

August 27, 1959.

Rehearing Denied December 8, 1959.

Smith, Parrish, Paduck & Clancy, Joseph Edward Smith, William Shannon Parrish, John B. Lewis, Oakland, Cal., Herbert Chamberlin, San Francisco, Cal., for appellant.

Steinhart, Goldberg, Feigenbaum & Ladar, Neil E. Falconer, John J. Goldberg, San Francisco, Cal., for appellee.

Before STEPHENS, HAMLIN and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant appeals from the final decree of the district court granting appellee's motion for a summary judgment in its favor. Jurisdiction of the district court was based on U.S.C. Title 28, Section 1333. Jurisdiction of this Court to review such decree is found in U.S.C. Title 28, Sections 1291 and 1294.

The parties agree that the sole and narrow question presented to this Court is whether the California Workmen's Compensation Act ousted the district court of jurisdiction to entertain a suit in admiralty against an employer for wrongful death under the Death on the High Seas Act by the administratrix of the estate of an airline employee who in the course of his employment was killed in the crash of an airliner on the high seas.

The stipulation of facts presented to the district court is as follows:

"(1) At all times relevant in this action, Respondent, Pan American World Airways, Inc., was and is a New York corporation, organized and existing under the laws of the State of New York with its airline operations divided into three separate divisions: The Pacific-Alaska Division (the Pacific area and Alaska) with headquarters at San Francisco, California; the Latin American Division (Central and South America) with headquarters at Miami, Florida; and the Atlantic Division (Europe and East) with headquarters at New York City, New York. Since 1944 the principal headquarters of the Pacific-Alaska Division has been located at the San Francisco International Airport, South San Francisco, California, and the principal headquarters of Pan American World Airways, Inc., for the transaction of business within the State of California has been located at the same place.

"(2) At all times relevant, the decedent, John Elvins King, and Libelant, Virginia J. King, were residents of the State of California;

"(3) The decedent John Elvins King, was first employed by Respondent, Pan American World Airways, Inc., on or about the 12th day of October, 1942, in San Francisco, California, and began his employment in San Francisco, California. The decedent, John Elvins King, was continuously employed by Respondent, Pan American World Airways, Inc., from the said 12th day of October, 1942, to and including the 8th day of November, 1957, and was continuously based at San Francisco since December 31, 1947.

"On May 1, 1957, said decedent was assigned the position of Flight Service Supervisor, stationed at the Pan American World Airways, Inc., base at the San Francisco International Airport, South San Francisco, California. That the duties of said employment provided that decedent John Elvins King would fly approximately 600 flying hours during a yearly employment of approximately 2080 hours.

"(4) At and prior to the time of the death of decedent, John Elvins King, on about November 8, 1957, Respondent, Pan American, had `secured' the compensation rights of its employees under the California Workmen's Compensation Act by securing a policy of Workmen's Compensation Insurance issued by the Travelers Insurance Company, which said policy was in full force and effect at the time of the death of the decedent, John Elvins King.

"(5) The decedent, John Elvins King, left the San Francisco International Airport, South San Francisco, California, alive on November 8, 1957, on board Pan American Flight No. 7, the first stop of which was Territory of Hawaii, U.S.A. At the time of his death, decedent, John Elvins King, was performing services growing out of and incident to his employment, and was acting within the course of his employment, and his death was not caused by intoxication. On November 8, 1957, the airplane entered the water at a point between San Francisco, California, and the Territory of Hawaii (Hawaiian Islands), more than one marine league from any shoreline. Following said event John Elvins King was dead. The parties do not stipulate as to whether he died in the air or in the water.

"(6) Following the death of decedent, John Elvins King, Respondent, Pan American World Airways, Inc., and Travelers Insurance Company, its Workmen's Compensation Insurance carrier, on December 2, 1957, filed an application before the Industrial Accident Commission of the State of California, being Claim No. SF 183-024, in which Virginia J. King, Jean C. King-Freeman, Richard R. King and Melissa A. King, minors, by their Guardian Ad Litem and Trustee, Virginia J. King, were parties. Said application was filed to determine the liability of applicant, Pan American, for death benefit and burial expense under the California Workmen's Compensation Act. On February 20, 1958, a hearing was held before the Industrial Accident Commission upon said application. At said hearing, Virginia J. King appeared, through counsel, and contested the jurisdiction of the Industrial Accident Commission.

"At said time and place, said Virginia J. King advised that she was appearing specially, and that the application had been filed by Respondents without and against her consent. That Respondents agreed that defendants were not appearing voluntarily. That Libelant advised further that her appearance was not to be considered as a consent to jurisdiction of the Industrial Accident Commission either directly or indirectly, nor was she appearing for any reason other than the fact that she had been summoned to appear by the Industrial Accident Commission of the State of California after proceedings instituted by Pan American World Airways, Inc. "As a result of said application and hearing, an order awarding a death benefit in favor of Virginia J. King, Richard R. King and Melissa A. King and against Travelers Insurance Company was made by the California Industrial Accident Commission on March 31, 1958.¹

"A certified copy of said application (Exhibit `A') and the order made by the Industrial Accident Commission with respect to said application (Exhibit `B') in said proceeding are attached as Exhibits `A' and `B' hereof, and a certified copy of the opinion of the referee is attached hereto as Exhibit `C' hereof.

"Entry of this stipulation shall not be deemed an admission by either party as to the relevancy or materiality of any of the facts stipulated to, and the parties reserve their rights in this regard."

Appellant's libel was based upon the Death on the High Seas Act (March 30, 1920, c. 111, Sections 1-7, 41 Stat. 537, 46 U.S.C.A. §§ 761-767). Relevant portions of that Act are as follows:

Section 1. "Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued."

Section 2. "The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought."

Section 5. "If a person die as a result of such wrongful act, neglect, or default as is mentioned in section 761 of this title during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this chapter for the recovery of the compensation provided in section 762 of this title."

Section 7. "The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone."

As a separate and special defense, the appellee alleged that the rights and obligations of the appellant were governed by the provisions of the California Workmen's Compensation Act, and that by virtue of the provisions thereof the rights and remedies afforded by said Workmen's Compensation Act provided the sole and exclusive right and remedy of appellant against the appellee for and on account of the death of the deceased employee, and that by virtue thereof appellant is barred from maintaining the action.

The California Workmen's Compensation Act (cited as sections in the West's Ann.California Labor Code) in its pertinent parts provides:

Section 3600: "Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as provided in section 3706, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: * * *"

Section 3600.5: "(a) If an employee who has been...