West v. Kozer

• Decision Date: 27 April 1922
• Citation: 104 Or. 94,206 P. 542
• Court: Oregon Supreme Court
• Parties: WEST v. KOZER, SECRETARY OF STATE. WINSLOW v. KOZER, SECRETARY OF STATE. KIRK ET AL., COM'RS OF STATE INDUSTRIAL ACCIDENT COMMISSION, v. KOZER, SECRETARY OF STATE.

206 P. 542

104 Or. 94

WEST v. KOZER, SECRETARY OF STATE. WINSLOW v. KOZER, SECRETARY OF STATE. KIRK ET AL., COM'RS OF STATE INDUSTRIAL ACCIDENT COMMISSION, v. KOZER, SECRETARY OF STATE.

Supreme Court of Oregon

April 27, 1922

In banc.

Original proceedings for mandamus by Fannie W. West, by Cornelia Winslow and by Will T. Kirk and others, as Commissioners of the State Industrial Accident Commission, against Sam A Kozer, Secretary of State. Cases consolidated. Judgment for plaintiffs.

Burnett C.J., dissenting in part.

W. C. Winslow and C. C. Page, both of Salem, and James B. Kerr, of Portland, for plaintiffs.

Joseph A. Benjamin, Asst. Atty. Gen. (George M. Brown, of Salem former Atty. Gen., on the brief), for defendant.

James B. Kerr and Charles A. Hart, both of Portland, amici curiæ.

McBRIDE J.

These cases all arise upon mandamus to compel the secretary of state to issue warrants for sums awarded by the state industrial accident commission, as compensation to various parties for injuries. some resulting in death, and others being of a minor character, which injuries were sustained in the course of employment upon the navigable waters of the United States and within the state of Oregon. Five different occupations are involved: (1) Shipbuilding work after launching; (2) ferry operation across the Willamette river (3) stevedoring work on board a seagoing vessel, under contract of employment with a stevedoring company operating in Portland, Or.; (4) cannery work, including operation of a motor boat on the waters of the Columbia river and within the boundaries of the state of Oregon; and (5) freight transportation work, including the operation of a steamboat upon the waters of Coos Bay in Oregon.

In all of these cases the injuries were the result of accident, and no questions of maritime tort are involved. In each instance, the state industrial accident commission awarded compensation, and in every case the employer and the injured employee had accepted the provisions of the state Workman's Compensation Act (Laws 1913, p. 188) and paid the sums required thereunder, so that there is no doubt of the existence of a contract between the employer, the employee, and the state, that, in case of injury to the employee his compensation should be adjusted and paid from the fund provided in that act. American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 A. 85, 94 A. 85; Sexton v. Newark Dist. Telegraph Co., 84 N. J. Law, 83-100, 86 A. 451; Gooding v. Ott, 77 W.Va. 487, 87 S.E. 862, L. R. A. 1916D, 637. Unlike the compensation acts of most of the states, compliance with the act is not compulsory, but voluntary, and the right to participate in the fund depends upon the actual or implied assent of the employer and the employee and their contribution to the fund. On principle, it is difficult to see why a law which permits an employer and an employee, with the financial assistance of the state, to contract with each other as to the measure of the employee's compensation, in case he should sustain injury while in the course of his employment, in any way trenches upon the constitutional jurisdiction of courts of admiralty. But certain expressions used by the Supreme Court of the United States, in cases which we shall hereafter discuss, which expressions were entirely proper when considered in connection with the matters then being treated, left such doubt in the mind of the secretary of state that he did not feel justified in issuing warrants for the awards in the cases here involved, until the law in the respects mentioned should be declared by this court.

We shall now consider the principal cases which have been supposed to militate against the constitutionality of any application of the Workman's Compensation Law to instances like those involved in the present contention. The first case is Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. That controversy arose under the Workman's Compensation Law of the state of New York (Laws 1913, c. 816; Laws 1914, cc. 41, 316 [Consol. Laws, c. 67]), which, in effect, was compulsory both upon the employer and the employee and contained none of those features of voluntary participation and contract which are prominent in our statute. The Southern Pacific Company owned a railroad in the state of New York and also a steamer plying between the ports of New York and Galveston, Tex. As stated in the opinion under consideration, one of the effects of the act, as construed by the state courts of New York, was that--

"no ship may load or discharge her cargo at a dock therein without incurring a penalty, unless her owners comply with the act."

The Southern Pacific Company, the owner of the ship, was a Kentucky corporation. Jensen, a longshoreman, was employed on board the ship in assisting to discharge cargo and, while so engaged, was accidentally killed. The state courts awarded his widow and minor children compensation under the act. The Supreme Court of the United States held that, under these circumstances, the act, as construed by the state courts, was unconstitutional as interfering with the admiralty jurisdiction of the United States, and, in the absence of any provision in the act concerning the consent of the parties, it is difficult to see how it could have held otherwise. To have done so would have made every foreign vessel entering the port of New York at once liable to pay compensation under the laws of the state, without the consent of its owners, an obligation unknown to admiralty and one seriously affecting those "rules of the sea whose uniformity is essential."

Another case is Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A. L. R. 1145, which also arose from an attempt to apply the compulsory New York Compensation Act to a case of purely maritime cognizance. Stewart, while in the employ of the plaintiff in error as a barge man, fell into the Hudson river and was drowned. His widow, the defendant in error, claimed under the New York Compensation Act and was given an award by the state courts. On writ of error to the Supreme Court of the United States, it was contended that the objections to the Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). which were the basis of the reversal in Southern Pacific Co. v. Jensen, supra, had been obviated by the clause in the act passed by Congress, October 6, 1917, which, among other matters, contained the following:

"Saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants the rights and remedies under the workmen's compensation law of any state." U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919, § 991 (3).

The Supreme Court of the United States held, in substance, that it was not competent for Congress to subtract from the admiralty jurisdiction conferred by the Constitution. and that the saving clause above recited did so and was therefore void. Among other comments is this significant remark:

"Other difficulties hang upon the unexplained words 'workmen's compensation law of any state."'

We do not understand the court as holding that an employer and an employee may not, as between themselves, contract to take out a form of accident insurance which shall be the measure of the liability of the employer in case of accident, and preclude the necessity of litigation in the federal courts, which is the case here presented. The method is a beneficent one, insuring to every employee a certain remedy and fair compensation instead of difficult litigation, a doubtful remedy and in many cases resulting in no compensation.

In Western Fuel Co. v. Garcia, 257 U.S. --, 42 S.Ct. 89, 66 L.Ed. --, "As the logical result of prior decisions, we think it follows that, where death upon such waters follows from a maritime tort committed on navigable waters within a state whose statutes give a right of action on account of death by wrongful act, the admiralty courts will entertain a libel in personam for the damages sustained by those to whom such right is given. The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts, when following the common law, will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations. Southern Pacific Co. v. Jensen, supra."

It cannot be shown that, in the instances brought to our notice by the present appeal, the allowance of the stipulated award will in any manner--

"work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations."

It is not the policy of the law, international or otherwise, to pull parties into court by the hair when they have agreed between themselves upon a method of keeping out, and, in view of the decision last quoted, this ought to terminate the present controversy in favor of the petitioners.

But the petitioners have a concrete case from the same court, the opinion being rendered by the same eminent justices who decided the cases of Knickerbocker Ice Co. v. Stewart and Western Fuel Co. v. Garcia, supra. We refer to the case of Grant Smith-Porter Ship Co. v. Rhode, 256 U.S. -- 42 S.Ct. 157, 66 L.Ed. --, United States Supreme Court case No. 35, decided January 3, 1922. The case briefly was this: The Grant Smith-Porter Ship Company was an Oregon corporation engaged in the construction of seagoing vessels at Portland, Or. Rhode, the libelant, was a carpenter employed as such in...