Murray v. Joe Gerrick & Co.

• Decision Date: 24 March 1933
• Docket Number: 24301.
• Citation: 20 P.2d 591,172 Wash. 365
• Parties: MURRAY v. JOE GERRICK & CO. et al.
• Court: Washington Supreme Court

20 P.2d 591

172 Wash. 365

MURRAY v. JOE GERRICK & CO. et al.

No. 24301.

Supreme Court of Washington

March 24, 1933

Department 2.

Appeal from Superior Court, Kitsap County; H. G. Sutton, Judge.

Action by Maxine Murray on her own behalf, and as guardian ad litem of Maxine Lois Murray, a minor, against Joe Gerrick & Co. and others. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Wm Martin, of Seattle, for appellant.

Stephen V. Carey, Henry T. Ivers, J. Speed Smith, and Henry Elliott, Jr., all of Seattle, for respondents.

MAIN Justice.

This action was brought to recover damages for wrongful death. To the complaint a demurrer was interposed and sustained. An amended complaint was filed, and a demurrer to that was likewise interposed and sustained. The plaintiff elected to stand upon the amended complaint and refused to plead further. Judgment was entered dismissing the action, from which she appeals.

The facts as stated in the amended complaint, so far as they are necessary to present the questions here for determination may be summarized as follows: On or about October 1, 1931, the respondent R. W. Kaltenbach Corporation entered into a contract with the United States government for the construction of a 20-ton traveling steel tower crane at the Puget Sound Navy Yard at Bremerton, this state. The Kaltenbach corporation contracted with the Industrial Brown Hoist Corporation to furnish the work, labor, and materials used in the construction of the crane. Louis Henry Murray was employed to work upon, and in the construction of, the crane as a structural steel worker.

On or about June 17, 1932, Murray entered into the employment as such steel worker at a wage of $1.10 per hour; the time to start when he left Seattle where the contract of employment was made, and the time was to continue until he returned there. Murray began the work for which he was employed, and while so engaged on June 21, 1932, he fell from the steel crane a distance of about twenty-five feet and sustained injuries from which he died within a day or two thereafter, leaving the appellant Maxine Murray, his widow, and Maxine Lois Murray, his only child, a minor three years of age, surviving.

Negligence is charged in a number of particulars, and it is further alleged that the work in which Murray was engaged was extrahazardous. The employers of Murray had not paid to the state director of labor and industries the premium upon its estimated pay roll. By the allegations of the amended complaint, it is sought to state a cause of action under the industrial insurance law of this state where the employer has not given notice to the department of labor and industries and paid the premiums upon his estimated pay roll.

The Industrial Insurance Act of this state (Laws of 1911, chapter 74, p. 345) was passed a number of years subsequent to the time this state, by Legislative enactment, gave its consent to the acquisition of the Puget Sound Navy Yard by the federal government, and ceded exclusive jurisdiction thereto.

The first question to be determined is whether the Industrial Insurance Act extends over the navy yard, which is subject to the jurisdiction of the federal government.

In State ex rel. Grays Harbor Construction Co. v. Department of Labor and Industries, 167 Wash. 507, 10 P.2d 213, 214, it was held that exclusive federal jurisdiction over Rainier National Park having been acquired through consent of the state subsequent to the passage of the state Industrial Insurance Act, which was in force within the boundaries of the park at the time jurisdiction was ceded, the act remained in force as to private rights within the park until such time as Congress passed an act which superseded it. In the course of the opinion it was said: 'Prior to the time that the Governor of this state was so notified, and in the year 1911, the Workmen's Compensation Act was passed. At that time the cession of the jurisdiction over the park area to the federal government had not become effective, and did not become effective until approximately five years later. The federal jurisdiction over the park area not having become effective when the Workmen's Compensation Act was passed, that act was in force and operative within the boundaries of the park. The Workmen's Compensation Act having been passed Before the cession of the jurisdiction over the park area became effective, it remained in force in the ceded territory until displaced by Congress. [Citing authorities.]'

From the holding in that case, it necessarily follows that the jurisdiction of the federal government over the navy yard having become effective by consent of the state prior to the passage of the Industrial Insurance Act, that act would not extend to the navy yard unless the federal Congress should pass an act which would so extend it; and it is contended that this is what Congress has done.

In 1928, Congress passed an act (United States Statutes at Large, vol. 45, part 1, p. 54 [16 USCA § 457]) the title of which was as follows: 'An Act Concerning actions on account of death or personal injury within places under the exclusive jurisdiction of the United States.'

In the body of the act it was provided that in the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the jurisdiction of the United States, within the exterior boundaries of any state, 'such right of action shall exist as though the place were under the jurisdiction of the State within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the parties shall be governed by the laws of the State within the exterior...