N. Coal & Dock Co. v. Indus. Comm'n

• Citation: 213 N.W. 658,193 Wis. 515
• Parties: NORTHERN COAL & DOCK CO. ET AL v. INDUSTRIAL COMMISSION ET AL.
• Decision Date: 03 May 1927
• Court: United States State Supreme Court of Wisconsin

193 Wis. 515

213 N.W. 658

NORTHERN COAL & DOCK CO. ET AL

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

May 3, 1927.

Appeal from Circuit Court, Dane County; August C. Hoppmann, Judge.

Action by the Northern Coal & Dock Company and others to review an award by the Industrial Commission to Emma Strand for the death of her husband. From a judgment affirming the award, plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Workmen's compensation liability and maritime law. The Northern Coal & Dock Company having its principal office at Cleveland, Ohio, is engaged in mining, distributing, and selling coal at wholesale. It does not own or operate any vessels or railroad lines. It has a dock situated on Superior Bay, a navigable portion of the Duluth Superior Harbor. Boats from Lake Erie ports discharge their cargoes at this dock. In October, 1924, the deceased, Charles Strand, was in the employ of the company as a car loader, but at times in the discharge of his duties he was required to assist in the unloading of boats. He was regularly employed by the dock company. They, however, had no employees who worked exclusively at unloading boats. The regular employees on the dock were called upon at such times as boats were being unloaded to go into the boats and help to unload the coal. The company had an average of about five boats per month during the season of navigation, and it took about 15 1/2 hours to unload a boat of average size. The employees were engaged approximately 75 hours in each month in unloading boats at the dock, and during the remainder of the time were given other work. During the year 1924, the deceased had worked 117 1/2 hours on the 31 boats. On October 20, 1924, the deceased, Strand, was working in the hold of the steamer Matthew Andrews, which was then lying at the dock, cleaning up coal in the hatches and shoveling it out so that the clamshell could pick it up. While so engaged he was caught between the clamshell and the side of the boat and died almost instantly as a result of his injuries. The vessel in which he was working at the time of his death was the steamer Matthew Andrews, which had brought a cargo of coal from Toledo, Ohio, to Superior by way of the Great Lakes. The vessel was lying in navigable waters and was made fast to the dock by lines in the customary way of securing boats while they are being unloaded. The clamshell was a part of the dock equipment and was operated by the dock company.

Strand's earnings were in excess of $1,400 per annum, and the funeral expenses amounted to more than $200. Upon proceedings had before the Industrial Commission the widow, Emma Strand, was awarded compensation. An action was begun in circuit court of Dane county to review the action of the Industrial Commission. Upon the trial the award of the Industrial Commission was affirmed by the judgment of the circuit court, and from that judgment the plaintiffs appeal.Powell & Sprowls, of Superior, and Lines, Spooner & Quarles, of Milwaukee, for appellants.

John W. Reynolds, Atty. Gen., and Mortimer Levitan and Fred C. Seibold, Asst. Attys. Gen., for respondent Industrial Commission.

John A. Cadigan, of Superior (Cadigan & Cadigan, of Superior, and Andrew Nelson, of Duluth, Minn., of counsel), for respondent Strand.

ROSENBERRY, J.

The Northern Coal & Dock Company, employer, and the deceased employee, Strand, were both under the Workmen's Compensation Act (chapter 102, Wis. Stats. 1925). Were it not for the fact that the deceased sustained the injuries on board a vessel, lying in navigable waters, from which he died, it is conceded that the dock company would be liable under the Workmen's Compensation Act. It is the contention of the dock company that the commission had no jurisdiction to make an award in this matter for the reason that the death of Charles Strand was the result of a maritime tort; that the admiralty and maritime jurisdiction conferred by the Constitution and laws of the United States is exclusive; that making an award in this matter on the...