Northern Coal & Dock Co. v. Industrial Commission

213 N.W. 658, 193 Wis. 515, 1927 Wisc. LEXIS 253

• Court: Wisconsin Supreme Court
• Decided: October 11, 1927
• Status: Published

Opinions

The following opinion was filed May 3, 1927 4

Rósenberry, J.

The Northern Coal & Dock Company, employer, and the deceased employee, Strand, were both under the workmen’s compensation act (ch. 102, Stats.). 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 ground that the accident and death are within the workmen’s compensation act is in violation of art. Ill, sec. 2, of the constitution of the United States, citing Great Lakes D. & D. Co. v. Kierejewski, 261 U. S. 479, 43 Sup. Ct. 418; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438; State of Washington v. W. C. Dawson & Co. 264 U. S. 219, 44 Sup. Ct. 302; Gonsalves v. Morse D. D. & R. Co. 266 U. S. 171, 45 Sup. Ct. 39; Robbins D. D. & R. Co. v. Dahl, 266 U. S. 449, 45 Sup. Ct. 157.

It appears without dispute that the employee, Strand, was instantly killed. There was therefore no liability at the common law. The liability arises only by reason of the enactment of statutes giving a right of recovery in such cases. No question of maritime tort is therefore involved as that matter was understood at the common law. The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140. However, where state statutes give a remedy for death by wrongful act and the act is done on navigable waters, courts of admiralty will enforce the liability thus created. While such a right will be enforced in courts of admiralty, their jurisdiction is not exclusive and the proper party may assert the right in a state court which also has jurisdiction. American Steamboat Co. v. Chase, 16 Wall. 522, 21 Lawy. Ed. 369.

Congress legislated with reference to the general subject matter of death by wrongful act in 1920. The statute contained the following provision:

“The provisions of any state statute giving or regulating, rights of action or remedies for death shall not be affected by this act. Nor shall this act apply to the Great Lakes or to any waters within the territorial limits of any state, or to any navigable waters in the Panama Canal Zone.” 41 U. S. Stats. at Large, 537, ch. 111.

Therefore if any liability exists on account of the death by wrongful act of the employee, Strand, it arises under the Wisconsin statutes which give such a right (sec. 331.03). Both the employer and the employee being under the workmen’s compensation act, the liability prescribed by that act is exclusive of all others by the terms of the statute (sec. 102.03). The Industrial Commission being by the terms of the statute the sole tribunal in which proceedings to enforce liability under the statute may be brought, the Commission did not act beyond or in excess of its power in entertaining the application for compensation in this case. Bloom v. Furness-Withy & Co. 293 Fed. 98; Dobrin v. Mallory Steamship Co. 298 Fed. 349.

The judgment of the circuit court confirming the award of the Industrial Commission was right and must be affirmed.

By the Court. — It is so ordered.

The following opinion was filed October 11, 1927: