Martinson v. State Indus. Acc. Commission
Decision Date | 22 September 1936 |
Citation | 60 P.2d 972,154 Or. 423 |
Parties | MARTINSON v. STATE INDUSTRIAL ACCIDENT COMMISSION. |
Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; James W. Crawford Judge.
Proceeding under the Workmen's Compensation Act by Bud Martinson against the State Industrial Accident Commission of the State of Oregon. From a judgment of the circuit court sustaining an order denying compensation, the plaintiff appeals.
Affirmed.
William P. Lord, of Portland (T. Walter Gillard, of Portland, on the brief), for appellant.
Victor R. Griggs, Asst. Atty. Gen. (I. H. Van Winkle, Atty. Gen., on the brief), for respondent.
The plaintiff, Bud Martinson, was hired on February 20, 1934, by Meyers Contract Company to assist in loading machinery on a barge moored to a wharf on the Willamette river in Portland Or. That company was engaged in general contracting business and had rented from the Diesel Towing Company the barge in question to transport its machinery and equipment from Portland to the Bonneville Dam on the Columbia river, and engaged the Diesel Towing Company to tow the barge to the dam site. The barge, of approximately 100 tons capacity, had prior to that time been used by the Diesel Towing Company principally to transport lumber and machinery on the Willamette river and the upper and lower Columbia.
Prior to his employment by Meyers Contract Company the plaintiff had at different times been employed by the Diesel Towing Company to assist in loading and unloading cargoes from the barge. The only work to be performed by him for Meyers Contract Company was to assist in loading that company's equipment on the barge. He had been working on the barge about an hour and a half when a welding tank "slipped down off a sling" used for loading it and crushed two toes of Martinson's left foot.
After the injury the plaintiff applied to the State Industrial Accident Commission for compensation under the Oregon Workmen's Compensation Law ( ). After paying him one month's compensation the commission denied further compensation, on the ground that the work in which the plaintiff was engaged at the time of the injury was maritime in nature and not covered by the State Compensation Act. Thereupon this proceeding was instituted against the commission. At the conclusion of the trial the circuit court entered judgment for the defendant, from which judgment the plaintiff has appealed.
The principal question involved on this appeal is whether or not the nature of the work in which plaintiff was engaged and the place of his employment at the time of the injury preclude recovery by him under the Oregon Compensation Act. It is admitted that the plaintiff and his employer, Meyers Contract Company, at the time of the injury were subject to that act as far as the provisions thereof could apply.
From the record in the case it appears that the barge prior to the loading of the machinery had been engaged exclusively in commerce on the navigable waters of the United States and at the time of the injury complained of was on navigable water and the cargo which was being loaded upon it was to be carried for a considerable distance on navigable waters.
The fact that the craft which was being loaded was a barge and not a ship does not alter the maritime nature of the work in which plaintiff was engaged. As was said in Nogueira v. New York, N.H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 304, 74 L.Ed. 754:
The loading of a barge or a ship has direct relation to commerce and navigation, is not a matter of purely local concern, and uniform rules in respect thereto are essential. So far as concerns the nature of the work to be performed, the loading of a vessel has as direct relation to commerce and navigation as the unloading. In Northern Coal & Dock Company v. Strand, 278 U.S. 142, 49 S.Ct. 88, 89, 73 L.Ed. 232, it is observed:
In Employers' Liability Assurance Corporation v. Cook (C.C.A.) 31 F. (2d) 497, 498, an action was brought by the widow of Hal Cook, under the Compensation Law of Texas, to recover compensation for Cook's death. The Ford Motor Company owned two steamships, the Lake Gorian and the Oneida, which it operated between Detroit and various cities where it maintained assembling plants, including Houston, Tex. On one of the trips of the steamship Lake Gorian to Houston, while Cook, who was a mechanic in the Ford assembling plant at that place, was in the hold of the ship assisting in unloading, he received an injury which caused his death. The defense to recovery under the Workmen's Compensation Law of Texas was that the asserted cause of action was within the exclusive jurisdiction of a court of admiralty. In the federal District Court the widow recovered judgment. The circuit court of appeals affirmed the judgment, using the same line of reasoning here advanced by the appellant for a reversal of the ruling of the trial court. We therefore quote at length from its opinion, as this will serve a double purpose, i. e., to explain appellant's position and to set forth the conclusions which later were refuted by the Supreme Court of the United States:
On appeal of the Cook Case to the Supreme Court, 281 U.S. 233, 50 S.Ct. 308, 309, 74 L.Ed. 823, the latter tribunal reversed the Circuit Court of Appeals and rejected its reasoning, in the following language:
See, also, in this connection: Gonsalves v Morse Dry Dock & Repair Company, 266 U.S. 171, 45 S.Ct. 39, 69 L.Ed. 228; Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306, 74 L.Ed. 819; Spencer Kellogg & Sons, Inc. v. Hicks, 285 U.S. 502, at page 513, ...
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