N. Coal & Dock Co. v. Strand

• Decision Date: 11 October 1927
• Citation: 215 N.W. 448,193 Wis. 515
• Parties: NORTHERN COAL & DOCK CO. ET AL. v. STRAND ET AL.
• Court: Wisconsin Supreme Court

193 Wis. 515

215 N.W. 448

NORTHERN COAL & DOCK CO. ET AL.

v.STRAND ET AL.

Supreme Court of Wisconsin.

Oct. 11, 1927.

Concurring opinion.

For main opinion, see 213 N. W. 658.

*448STEVENS, J. (concurring).

The widow of the deceased employee makes no claim against the ship on which decedent was injured nor against the owner of the ship. She is not seeking any recovery in tort. She asks only that the employer of her deceased husband pay her the death benefit which he contracted to pay when he employed the decedent.

The deceased was not employed by the owner of the ship either as a seaman or as a stevedore. Had he been injured upon the dock or upon any part of the premises belonging to his employer, the Coal & Dock Company, no question could be raised as to the right of his widow to recover the compensation which she asks.

The case presents the single question whether the fact that the deceased was temporarily at work on board a ship at the time he received the injury vests exclusive jurisdiction in admiralty, thereby nullifying his contract of employment and giving his employer the right to violate the obligation of its contract which gave the widow the right to a death benefit.

The controlling fact in this case is that this is not an action sounding in tort. It is a proceeding to recover a death benefit fixed by contract “within a state whose positive enactment prescribed an exclusive remedy therefor. And as both parties had accepted and proceeded under the statute, * * * it cannot properly be said that they consciously contracted with each other in contemplation of the general system of maritime*449law.” Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476, 477, 42 S. Ct. 157, 158, 66 L. Ed. 321, 324 (25 A. L. R. 1008).

“An award under the Workmen's Compensation Law (Laws N. Y. 1913, c. 816, as amended by Laws 1914, c. 41) is not made on the theory that a tort has been committed; on the contrary, it is upon the theory that the statute giving the commission power to make an award is read into and becomes a part of the contract. * * * The contract of employment, by virtue of the statute, contains an implied provision that the employer, if the employee be injured, will pay to him a certain sum to compensate for the injuries sustained, or, if death results, a certain sum to dependents. These payments are made irrespective of whether or not the employer was guilty of wrongdoing. It is a part of the compensation agreed to be paid for services rendered in the course of the employment.” State Industrial Commission v. Nordenholt, Corp., 259 U. S. 263, 271, 42 S. Ct. 473, 66 L. Ed. 933, 936 (25 A. L. R. 1013).

An examination of the decisions of the federal Supreme Court discloses a consistent extension of the field within which that court recognizes the power of state courts to enforce rights under Workmen's Compensation Acts in all cases where the injured employee was neither a seaman nor a stevedore, even if the injuries were sustained upon navigable waters. Two recent decisions of the federal Supreme Court illustrate this tendency. Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 478, 42 S. Ct. 157, 66 L. Ed. 321, 325, 25 A. L. R. 1008;Millers' Indemnity Underwriters v. Braud, 270 U. S. 59, 64, 65, 46 S. Ct. 194, 195, 70 L. Ed. 470, 472. In the case last cited it is said:

“In the cause under consideration the record discloses facts sufficient to show a maritime tort to which the general admiralty jurisdiction would extend save for the...