Murray v. Pacific Coast S.S. Co.

• Decision Date: 16 September 1913
• Docket Number: 1,232.
• Citation: 207 F. 688
• Parties: MURRAY v. PACIFIC COAST S.S. CO.
• Court: U.S. District Court — Western District of Washington

207 F. 688

MURRAY v. PACIFIC COAST S.S. CO.

No. 1,232.

United States District Court, W.D. Washington, Southern Division.

September 16, 1913

Bone &amp Wright and Grant A. Dentler, all of Tacoma, Wash., for plaintiff.

Farrell Kane & Stratton, of Seattle, Wash., for defendant.

CUSHMAN District Judge.

This cause is for decision upon plaintiff's demurrer to the defendant's answer, alleging the unconstitutionality, as between plaintiff and defendant, of the Workmen's Compensation Act of the state of Washington (Laws of 1911, p 345), under which it is claimed plaintiff sues.

The action is one in personam to recover damages for an injury to plaintiff, received, while in the employ of the defendant as a longshoreman, at work stowing away wheat then being loaded in the hold of one of defendant's vessels lying at the wharf in Tacoma. The injury is charged to have been caused by defendant's negligence.

In plaintiff's amended complaint it is alleged that the defendant is a California corporation, maintaining an office for the transaction of its business in the county of Pierce state of Washington, and engaged in transporting freight by water from and to the port of Tacoma. Paragraph X of the complaint alleges:

'That, at the time said injury was inflicted upon the plaintiff as aforesaid, the defendant was in default in the payment to the accident funds used for the compensation of injured workmen of its percentage of its total pay roll, according to the schedule made and provided by law, and demand for such payment had been made upon the defendant by the State Industrial Insurance Department of the state of Washington long prior to the time said injury was inflicted upon said plaintiff as aforesaid.'

The Washington Compensation Law provides an industrial insurance for workmen injured in certain employments classed in the act as 'extra hazardous.' The fund from which said workmen are to be paid is raised by a tax upon the employers, based on a varying table of percentages on their pay rolls for the year. Stevedoring and longshoring are classed as 'extra hazardous,' and the tax on these employers is fixed at '.030.' The act provides:

' * * * All phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen, injured in extra hazardous work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this act; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this act provided.

'Sec. 8. If any employer shall default in any payment to the accident fund hereinbefore in this act required, the sum due shall be collected by action at law in the name of the state as plaintiff, and such right of action shall be in addition to any other right of action or remedy. In respect to any injury happening to any of his workmen during the period of any default in the payment of any premium under section 4, the defaulting employer shall not, if such default be after demand for payment, be entitled to the benefits of this act, but shall be liable to suit by the injured workman (or the husband, wife, child or dependent of such workman in case death result from the accident), as he would have been prior to the passage of this act.

'In case the recovery actually collected in such suit shall equal or exceed the compensation to which the plaintiff herein would be entitled under this act, the plaintiff shall not be paid anything out of the accident fund; if the said amount shall be less than such compensation under this act, the accident fund shall contribute the amount of the deficiency. The person so entitled under the provisions of this section to sue shall have the choice (to be exercised before suit) of proceeding by suit or taking under this act. If such person shall take under this act, the cause of action against the employer shall be assigned to the state for the benefit of the accident fund. In any suit brought upon such cause of action the defense of fellow servant and assumption of risk shall be inadmissible, and the doctrine of comparative negligence shall obtain. Any such cause of action assigned to the state may be prosecuted or compromised by the department in its discretion. Any compromise by the workman of any such suit, which would leave a deficiency to be made good out of the accident fund, may be made only with the written approval of the department. ' Pages 345, 346, 362, and 363.

The answer alleges that this act is unconstitutional, as between the parties to this suit, because it contravenes sections 1 and 2, art. 3, section 8, art. 1, of the Constitution of the United States, the fifth, seventh, and section 1 of the fourteenth amendments to the Constitution, and section 21, art. 1, of the Constitution of the state of Washington.

Plaintiff relies upon the following authorities: Munn v. Illinois, 94 U.S. 113-134, 24 L.Ed. 77; State v. Heldenbrand, 62 Neb. 136, 87 N.W. 25, 89 Am.St.Rep. 743; Danforth v. Groton Water Co., 178 Mass. 472, 59 N.E. 1033, 86 Am.St.Rep. 495; Pittsburgh, Cincinnati, Chicago & St. L. Ry. Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582, 69 L.R.A. 875, 71 Am.St.Rep. 301; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466; J. L. Stoll v. Pacific Coast S.S. co. (D.C.) 205 F. 169; American Steamboat Co. v. Philip B. Chace, Adm'r, 83 U.S. (16 Wall.) 522, 21 L.Ed. 369; Schoonmaker et al. v. Gilmore et al., 102 U.S. 118, 26 L.Ed. 95; Garcia y Leon v. Galceran et al., 78 U.S. 185, 20 L.Ed. 75; Moran v. Sturges, 154 U.S. 256, 14 Sup.Ct. 1019, 38 L.Ed. 981; Moses Taylor v. Hammons, 71 U.S. (4 Wall.) 411, 18 L.Ed. 397; Steamboat Ad. Hine v. Mathew R. Trevor, 71 U.S. (4 Wall.) 555, 18 L.Ed. 451; Knapp, Stout & Co. v. John McCaffrey, 177 U.S. 638, 20 Sup.Ct. 824, 44 L.Ed. 921.

Defendant relies upon the following cases: Steamboat Ad. Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451; Gerrity v. The Kate Cann (D.C.) 2 Fed. 241; Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192; The Strabo (D.C.) 90 F. 110; Grimsley v. Hankins (D.C.) 46 F. 400; Levy v. McCartee, 6 Pet. 108, 8 L.Ed. 337; Capital Traction Co. v. Hof, 174 U.S. 1, 19 Sup.Ct. 583, 43 L.Ed. 873; Cowhick v. Shingle, 5 Wyo. 87, 37 P. 692, 25 L.R.A. 608, 63 Am.St.Rep. 17; Workman v. New York, 179 U.S. 552, 21 Sup.Ct. 212, 45 L.Ed. 314; The J. E. Rumbell, 148 U.S. 1, 13 Sup.Ct. 500, 37 L.Ed. 345; The Chusan, 2 Story, 455, Fed. Cas. No. 2,717; The Roanoke, 189 U.S. 185, 23 Sup.Ct. 491, 47 L.Ed. 770; The Lyndhurst (D.C.) 48 F. 839; New Zealand Ins. Co. v. Earnmoor S.S. Co., 79 F. 368, 24 C.C.A. 644; Laidlaw v. O.R. & N. Co., 81 F. 876, 26 C.C.A. 665; Pacific Coast S.S. Co. v. Bancroft-Whitney Co., 94 F. 181, 36 C.C.A. 135; Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Ex parte Wood (C.C.) 155 F. 190.

This cause was begun in the state court and removed to this court. Paragraph X of the complaint (above quoted) brings the action within the exception named in the Compensation Act.

Section 2 of article 3 of the Constitution of the United States provides that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction. ' The Federal Judiciary Act provides:

'The district courts shall have jurisdiction as follows: * * * Eighth. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts. And shall have original and exclusive cognizance of all prizes brought into the United States, except as provided in paragraph six of section six hundred and twenty-nine. ' Section 563, R.S.; volume 4, Fed. Stat. Ann. p. 220 (U.S. Comp. St. 1901, p. 457).

In the Judicial Code of March 3, 1911, c. 231, 36 Stat. 1091 (U.S. Comp. St. Supp. 1911, p. 136), this paragraph is amended to read:

'Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. ' Section 24, par. 3, p. 8.

The Judiciary Act further provided:

'The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several states: * * * Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. ' Section 711, R.S.; Fed. Stat. Ann. vol. 4, p. 494 (U.S. Comp. St. 1901, p. 577).

This provision has been carried into the Judicial Code, without change, as section 256 (pages 87 and 88).

Defendant contends that, under the Constitution and provisions of the Judiciary Act (section 563, R.S., above quoted), the subject-matter of the present suit being such as to permit a suit in admiralty, either in personam or in rem, the jurisdiction of the admiralty court is exclusive, and that the ...