Stoll v. Pacific Coast S.S. Co.

• Decision Date: 28 April 1913
• Docket Number: 1,241.
• Citation: 205 F. 169
• Parties: STOLL v. PACIFIC COAST S.S. CO.
• Court: U.S. District Court — Western District of Washington

205 F. 169

STOLL v. PACIFIC COAST S.S. CO.

No. 1,241.

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

April 28, 1913

Arnold & Mitchell, of Tacoma, Wash., for plaintiff.

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

CUSHMAN District Judge.

This is a suit for personal injuries alleged to have been suffered by the plaintiff at Tacoma, while employed receiving and storing cargo aboard a ship; that is, a stevedore. The plaintiff is a citizen of Washington, while the defendant is a California corporation and interstate water carrier between the ports of Puget Sound and those in other states and territories of the United States. The matter is before the court on demurrer to an affirmative defense, alleging that the employment in which plaintiff was engaged at the time of his injury was covered by a Washington law for the compensation, by the state, of injured workmen. This law recites and provides:

'The common-law system governing the remedy of workmen against employers for injuries received in hazardous work is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the workman and that little only at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wageworker. The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workmen injured in extrahazardous work, and their families and dependents, is hereby provided regardless of question 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. * * * ' Section 1, Laws 1911, pp. 345, 346.

'Insomuch as industry should bear the greater portion of the burden of the cost of its accidents, each employer shall, prior to January 15th of each year, pay into the state treasury, in accordance with the following schedule, a sum equal to a percentage of his total pay roll for that year, to wit (the same being deemed the most accurate method of equitable distribution of burden in proportion to relative hazard): (Setting out table of percentage of wages to be paid in various industries.) * * *

'The fund thereby created shall be termed the 'accident fund,' which shall be devoted exclusively to the purpose specified for it in this act. * * * ' Section 4, Laws 1911, pp. 349, 352.

'Each workman who shall be injured whether upon the premises or at the plant or, he being in the course of his employment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever. * * * ' Section 5, Laws 1911, p. 356.

'The provisions of this act shall apply to employers and workmen engaged in intrastate and also in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his workmen working only in this state may, with the approval of the department, and so far as not forbidden by any act of Congress, voluntarily accept the provisions of this act by filing written acceptances with the department. Such acceptances, when filed with and approved by the department, shall subject the acceptors irrevocably to the provisions of this act to all intents and purposes as if they had been originally included in its terms. Payment of premium shall be on the basis of the pay roll of the workmen who accept as aforesaid. * * * ' Section 18, p. 367.

'Any employer, workman, beneficiary, or person feeling aggrieved at any decision of the department affecting his interests under this act may have the same reviewed by a proceeding for that purpose, in the nature of an appeal, initiated in the superior court of the county of his residence (except as otherwise provided in subdivision (1) of section numbered 5) in so far as such decision rests upon questions of fact, or of the proper application of the provisions of this act, it being the intent that matters resting in the discretion of the department shall not be subject to review. The proceedings in every such appeal shall be informal and summary, but full opportunity to be heard shall be had before judgment is pronounced. No such appeal shall be entertained unless notice of appeal shall have been served by mail or personally upon some member of the commission within twenty days following the rendition of the decision appealed from and communication thereof to the person affected thereby. No bond shall be required, except that on appeal by the employer from a decision of the department under section 9 shall be ineffectual unless, within five days following the service of notice thereof, a bond, with surety satisfactory to the court, shall be filed, conditioned to perform the judgment of the court. Except in the case last named an appeal shall not be a stay. The calling of a jury shall rest in the discretion of the court except that in cases arising under sections 9, 15 and 16 either party shall be entitled to a jury trial upon demand. It shall be unlawful for any attorney engaged in any such appeal to charge or receive any fee therein in excess of a reasonable fee, to be fixed by the court in the case, and, if the decision of the department shall be reversed or modified, such fee and the fees of medical and other witnesses and the costs shall be payable out of the administration fund, if the accident fund is affected by the litigation. In other respects the practice in civil cases shall apply. Appeal shall lie from the judgment of the superior court as in other civil cases. The attorney general shall be the legal adviser of the department and shall represent it in all proceedings, whenever so requested by any of the commissioners. In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct, and the burden of proof shall be upon the party attacking the same. ' Section 20, pp. 368, 369.

Plaintiff's points and authorities are as follows:

Plaintiff has a right to have his controversy with the defendant determined in the United States District Court. Sections 1 and 2, article 3, Constitution of the United States.

The Washington act interferes with interstate commerce. Section 8, article 1, Constitution of the United States; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 Sup.Ct. 826, 29 L.Ed. 158; House Roll No. 20,310; Act April 22, 1908, 35 S.L. 65, c. 149 (U.S. Comp. St. Supp. 1909, p. 1171), amended by Act April 5, 1910, 36 Stat.at L. 291, c. 143 (U.S. Comp. St. Supp. 1911, p. 1324); Mondou v. N.Y., etc., R. Co., 223 U.S. 1, 32 Sup.Ct. 169, 56 L.Ed. 327, 38 L.R.A. (N.S.) 44; Employers' Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297 (construing Act June 11, 1906, 34 Stat. at L. 232, c. 3073 (U.S. Comp. St. Supp. 1911, p. 1316)).

The act deprives both plaintiff and defendant of property without due process of law, in violation of the fifth and fourteenth amendments to the Constitution, and section 3, article 1, Declaration of Rights, Washington State Constitution. Hibben v. Smith, 191 U.S. 310, 24 Sup.Ct. 88, 48 L.Ed. 195; Trustees Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629; Ex parte Wall, 107 U.S. 265, at 289, 2 Sup.Ct. 569, 27 L.Ed. 552; Hovey v. Elliott, 167 U.S. 409, 17 Sup.Ct. 841, 42 L.Ed. 215; 8 Enc.of Law & Pro., 1081, footnote 58; Holden v. Hardy, 169 U.S. 366, 18 Sup.Ct. 383, 42 L.Ed.

780; Ives v. So. Buffalo Ry. Co., 201 N.Y. 271, 94 N.E 431, 34 L.R.A. (N.S.) 162, Ann. Cas. 1912B, 156; Ziegler v. S. & N. Ala. R. Co., 58 Ala. 594; Jensen v. Union Pac. Ry. Co., 6 Utah, 253, 21 P. 994, 4 L.R.A. 724; Allgeyer v. Louisiana, 165 U.S. 578, 17 Sup.Ct. 427, 41 L.Ed. 833; In re Aubrey, 36 Wash. 308, 78 P. 900, 104 Am.St.Rep. 952, 1 Ann.Cas. 927; State v. Brown, 37 Wash. 97, 79 P. 635, 68 L.R.A. 889, 107 Am.St.Rep. 798; Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616; Chicago, etc., R.R. v. Chicago, 166 U.S. 226, 17 Sup.Ct. 581, 41 L.Ed. 979; Fayerweather v. Ritch, 195 U.S. 276, 25 Sup.Ct. 58, 49 L.Ed. 193; Oregon R. & N. Co. v. Smalley, 1 Wash. 206, 23 P. 1008, 22 Am.St.Rep. 143; Jollife v. Brown, 14 Wash. 155, 44 P. 149, 53 Am.St.Rep. 868; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600, 33 P. 515, 23 L.R.A. 812, 36 Am.St.Rep. 309; Cottrel v. U.P. ry. Co., 21 P. 416; ^[1] Thompson v. N.P. Ry. Co., 8 Mont. 279, 21 P. 25; Atchison, etc., Ry. Co. v. Baty, 6 Neb. 37, 29 Am.Rep. 356; Angle v. Chicago, St. P., M. & O.R. Co., 151 U.S. 1, 14 Sup.Ct. 240, 38 L.Ed. 55; 20 Am. & Eng. Enc. of Law (2d Ed.) 54; Braydon v. Stewart (Eng.) 2 Macq.H.L. 30; Walker v. Bolling, 22 Ala. 294; Harrison v. Central R. Co., 31 N.J.Law, 293; Faulkner v. Erie R. Co., 49 Barb. (N.Y.) 324; Hallower v. Heney, 6 Cal. 209; Chicago, etc., R. Co. v. Minnesota, ...