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construed to be performed at the plant. The stepladder employed in Lipstein vs. Provident Loan Society, 154 App. Div. 732, 139 N. Y. Supp. 799, I think, was very properly held to be a part of the plant. It was a necessary implement to perform the work required, and the defect in the ladder, the cause of the injury, would come within the provisions of the Workmen's Compensation Act of New York (Consol. Laws, c. 31, SS 200204, as amended by Laws 1910, c. 352), which provides :

“By reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer -and justified the court in saying :

"Applying, therefore, the various tests above suggested, we conclude that anything (as distinguished from persons), animate or inanimate, and whether fixed or movable, that is regularly used in the conduct of the business of an employer, and that is neither ways, works, nor machinery, and without which, or something of a similar character, such business could not be carried on in the usual and ordinary manner, may be deemed to be a portion of the plant connected with such business."

And for the same reason, under the same act, in McKeon vs. Proctor & Gamble Co., 162 App. Div. 784, 147 N. Y. Supp. 1012, "chain tongs" were properly held a part of the plant; and in Kerwin vs. Long Island Co., 157 App. Div. 898, 142 N. Y. Supp. 1125:

"The rope furnished by defendant for ordinary use upon its wagons for the purpose of securing the loads of said wagons was a part of the plant within the meaning of the statute."

And likewise in Drury vs. American Fruit Co., 163 App. Div. 509, 148 N. Y. Supp. 675, a plank skid, consisting of planks fastened together by iron cleats, which extended from a store platform to the floor of a car, and used to carry barrels from the car to the platform, was held to be at the plant, and that case is on "all fours" with Meese vs. Northern Pacific Railway Co., supra; and upon the same theory, and for the same reason, in Wiley vs. Solvay Process Co., 215 N. Y. 584, 109 N. E. 606, Ann. Cas. 1917A, 314, injury was predicated upon defective appliances, in that the facilities to properly perform the work were not furnished, and by reason of the defective tools recovery was permitted under the Compensation Act, the court saying :

"The words used in the act of 1902, namely 'ways, works, and machinery,' did not include everything furnished to the employee for his use in the business of the employer. The word 'plant' was added to that section by chapter 352 of the Laws of 1910. It cannot be reasonably doubted that the change was made for the benefit of the employees, and to make certain that everything reasonably required for the safety of an employee in the conduct of the master's business would be


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included in the statute, by the use of the word 'plant.' The word 'plant in its ordinary acceptation, when used in connection with and relating to a business, includes everything other than supplies and stock in trade necessary and requisite to the carrying on of the business.”

And for the same reason, in Riddle vs. Bessemer Soil Pipe Co., 170 Ala. 559, 54 South. 525, recovery was permitted under the Alabama Workmen's Compensation Act, because of omission of the employer to furnish proper facilities for greasing a running belt to keep it from slipping.

The complaint in this case is that the deceased was injured while making repairs on the steamship Hyades at Pier 9, Seattle, Wash., and away from the plant of said Standard Boiler Works. For the purposes of the demurrer this statement is admitted, and, if the fact is otherwise, it must be presented by answer. If the injury causing the death of Brown had been occasioned by reason of defect in the tools and apparatus furnished and necessary for the execution of the work in which he was employed, there might be reason for contending that the "plant" accompanied the employee to the place where the facilities of the enterprise were to be employed, and that as between the employee and employer the Compensation Act would be conclusive. But no reasonable construction, it seems to me, can be placed upon the language employed by the Legislature and the general terms of the act, which determines that the "plant" accompanies an employee wherever he may go to perform services for his employer, as against a third party.







Contract by which employee was to act as second mate in voyage from San Francisco to point in Canada and return was a maritime contract relating to foreign commerce within the exclusive jurisdiction of the United States courts, and the Industrial Commission had no jurisdiction.

In Bank. Application for a writ of review by the Tallac Company against A. J. Pillsbury and others, constituting the Industrial Accident Commission of the state. Award of Commission annulled.

* Decision rendered, Oct. 4, 1917. 168 Pac. Rep. 17.

McCutchen, Olney & Willard and Ira A. Campbell, all of San Francisco, for Petitioner.

Chris. M. Bradley, of San Francisco, for Respondents.

SHAW, J. Proceeding in review, under section 84 of the Workmen's Compensation Insurance and Safety Act of 1913. Henry G. Classen was second mate of the steamer Tallac, which was owned in part and entirely managed by the Tallac Company, the petitioner herein. The home port of the steamer was San Francisco, Cal. Classen was hired in San Francisco by said company as second mate of the Tallac for the voyage from San Francisco to New Westminster, British Columbia, and return. While at the port of New Wesminster, engaged in loading poles upon the steamer on October 8, 1914, he was injured by accident in the course of his employment. On reaching San Francisco in April, 1915, he applied to the Industrial Accident Commission for relief under the aforesaid act. This case was heard and the commission made him an award against the Tallac Company for the payment of $627.84 in cash, and $1,308 in weekly instalments of $17.44 each for seventy-five weeks. The Tallac Company applies to this court to annul said award, claiming that the Industrial Accident Commission had no jurisdiction. This presents the sole question for our consideration.

The contract of service in the performance of which Classen was injured was clearly a maritime contract relating to foreign commerce, and was of a character which brings the case within the admiralty and maritime jurisdiction given by the Constitution of the United States to the courts of the United States. When the case was first submitted to this court it was discovered that the question whether or not it was within the power of a state, by means of such laws as the Workmen's Compensation Insurance and Safety Act of this state, to impose additional burdens upon such commerce, was involved in a case then pending in the Supreme Court of the United States. Thereupon the submission was set aside and consideration of the case postponed to await decision of the question by the court of paramount authority.

On May 21, 1907, in Southern Pac. Co. vs. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. —, the Supreme Court of the United States decided that the Workmen's Compensation Act of New York, which, in all respects material to the question, is similar to that of this state, could not be extended to workmen injured while assisting in unloading a steamer in navigable waters in New York, if such steamer was then engaged in commerce between the states, or in foreign commerce. The court said :

“Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the federal district courts,

'saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.' The remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction."

This decision is conclusive of the case at bar. The Industrial Accident Commission was without jurisdiction to make any award for the injury complained of, and its adjudication is invalid.

The award is annulled. We concur: Angellotti, C. J.; Sloss, J.; Lawlor, J.; Henshaw, J.





(S. F. 8185.) *



Under Workmen's Compensation Act which allows compensation to dependents of employee only where the proximate cause of death is a Personal injury sustained by accident arising out of and in course of employment, death of employee engaged in erection of building on scaffold properly guarded by rope, as a result of epileptic fit causing him to fall was not within the statute.

In Bank. Application for writ of review by B. M. Brooker, employer, and the United States Fidelity & Guaranty Company, insurer, to review an award made by the Industrial Accident Commission against the insurer, in favor of Rodrigo Fuente and Amelia Fuente, on account of the death of R. R. Fuente. Award annulled.

Lloyd S. Ackerman, of San Francisco, for Petitioners.
Chris. M. Bradley, of San Francisco, for Respondents.

SHAW, J. petition to review an award made by the Industrial Accident Commission against the United States Fidelity & Guaranty Company, insurance carrier for Brooker, in favor of Rodrigo and Amelia Fuente, on account of the death of R. R. Fuente, caused by injuries received by Fuente while he was in the employment of the defendant Brooker as a laborer. Fuente

* Decision rendered, Oct. 11, 1917. 168 Pac. Rep. 126.

was the son of the petitioner Rodrigo and the stepson of the petitioner Amelia. The petition is based upon the claim that the injury which caused the death of Fuente, and the accident which produced the injury, although they happened to him in the course of his employment, did not arise "out of” his employment.

The decedent was a laborer employed by Brooker in the erection of a building. He was working upon a scaffold five feet in width and thirty-nine feet above the ground. The scaffold was guarded, in compliance with the law or ordinance, by a rope three feet high along its outer edge. While so engaged, the decedent fell to the surface of the scaffold, rolled off the edge, and thence fell to the ground. Death resulted from the injuries caused by the fall to the ground. There was evidence sufficient to show that he was subject to epileptic fits at long intervals, and that he was seized with one of these fits while at work on the scaffold, as a consequence of which he fell down upon the scaffold, and that as a result of the contortions incident to such fit he rolled off the edge and was precipitated to the ground. There was no evidence to the contrary. The commission did not find that the epileptic fit caused the fall, as it should have done, but found in general terms that the injury which caused the death of Fuente arose out of and happened in the course of his employment. It is practically conceded that the sole cause of his fall was a fit of epilepsy.

The contention of the petitioners is that the proximate cause of the fall was the epileptic fit, with which his employment had no casual connection, and hence that the accident and resulting injury arose from the fact that he was an epileptic and had the fit, and not out of his employment. We are of the opinion that this contention must be sustained. The Workmen's Compensation Act allows compensation to tne dependents of an employee only where the proximate cause of the death of such employee is a personal injury sustained by him "by accident arising out of and in the course of the employment." Section 12. There was nothing in the nature of the work which the deceased was doing at the time that had any tendency to bring on a fit of epilepsy. Neither the fit nor the fall, nor the injury, was produced by the nature of the work in which he was engaged. The injury was doubtless the greater by reason of the distance from the scaffold to the ground, but this distance was not due to the nature of the work itself. The question whether or not such injury arises "out of” the employment cannot and does not depend upon the height from which the employee falls or the extent of the injury he receives as the result of the fit.

The exposition of this question by the Supreme Court of Michigan in Van Gorder vs. Packard Votor Car Co., 162 N. W. 107, is so clear and so well fits the conditions of the case at bar that we cannot do better than to quote it here. The em

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