SUPREME COURT OF NEW YORK.

SPECIAL TERM, KINGS COUNTY.

LIVERANI

V.

JOHN T. CLARK & SON ET AL.*

1. ADMIRALTY MARITIME TORT DEATH ON SHORE WORKMEN'S COMPENSATION ACT.

In view of Code Civ. Proc. § 1902, providing that an action for death by negligence is only maintainable when the party sued would have been liable to an action in favor of decedent, if death had not ensued, where stevedore is negligently injured on vessel, but dies from injuries on shore in state of New York, the tort is maritime, and his remedy is in rem in admiralty, or a common-law action, and the Workmen's Compensation Act could give no remedy.

(For other cases, Admiralty, Dec. Dig. § 20.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT ELECTION-EFFECT-MARITIME TORT.

Election to proceed under the New York Workmen's Compensation Act to recover for death of stevedore, injured on vessel, but who died on shore, could not preclude common-law action, since Compensation Act could give no remedy.

(For other cases, see Master and Servant, Dec. Dig. § 353.)

Action by one Liverani, as administratrix, against John T. Clark & Son and another for death of plaintiff's intestate. On motion by defendants to set aside verdict for plaintiff. Motion denied.

KAPPER, J. Plaintiff, as administratrix, recovered a verdict against both defendants for the death of her intestate, which the jury found was occasioned by the negligence of the defendants, one of whom was the stevedore who was the employer of the intestate, and who was engaged in loading the steamship Sarnia belonging to the defendant steamship company; the other defendant being the owner of said steamship. An I-bolt broke, causing some tackle to fall upon the intestate, and his death ensued. Although his injuries were fatal, the actual demise did not take place until the following day in a hospital on shore, to which he had been removed. Both defendants moved to set aside the verdict. The employer stevedore does not participate in this motion by brief or argument, although an opportunity to do so was accorded upon request.

[1, 2] The defendant steamship company advances the two propositions: (1) That as the death occurred on shore, the cause of action then arose, and was not within the jurisdiction of the admirality court, and that the plaintiff was therefore remitted to the exclusive remedy afforded by the Workmen's Compensation Law (Consol. Laws, c. 67), as to which see Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795, where it was held that a workman, injured or killed while engaged in a class of work to which the Workmen's Compensation Law applied, was limited in his rights and remedies to the compensation provided by that law; and (2) that by virtue of an award sought by the plaintiff from the Workmen's Compensation Commission the plaintiff *Decision rendered, March 31, 1919. 176 N. Y. Supp. 725.

had elected to so proceed, which election estopped her from maintaining this action at common law.

As to the first contention, its basis is a ruling in the case of Ryley v. Philadelphia, etc., Ry. (D. C.) 173 Fed. 839, where it was held that injury to a person caused by a collision on navigable waters, and which resulted in his death on shore, deprived the admiralty court of jurisdiction to award damages for the death. It is conceded that if the death of the intestate had been instantaneous, or had taken place on the ship, the common-law action was properly brought under the ruling of the United States Supreme Court in the cases of Southern Pacific Co. v. Jensen, 244 U S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, and Clyde Steamship Co. v. Walker, 244 U. S. 255, 37 Sup. Ct. 545, 61 L. Ed. 1116, where it was held that stevedoring work on a ship was maritime in character, and that the Workmen's Compensation Commission was without jurisdiction to make an award that was binding upon the employer stevedore; exclusive jurisdiction in such cases vesting, according to the ruling, in the admiralty or common-law courts. That being so, it is sought to take the case out of this rule because the death did not occur on the ship; and the Ryley Case, supra, is, as stated, cited in support of that contention.

Apart from the cases to the contrary hereinafter cited, reasoning would not support such a contention, in my opinion. Under our statute (section 1902, Code Civ. Proc.), an action to recover damages for death by negligence is only maintainable when the party sued "would have been liable to an action in favor of the decedent by reason thereof if death had not ensued." The sole right of action vesting in the administrator is one that would have been maintainable only had the decedent himself survived and possessed a right of action. See Kelliher v. N. Y. Cent., etc., R. R., 212 N. Y. 207, 105 N. E. 824, L. R. A. 1915E, 1178; Littlewood v. Mayor, etc., of N. Y., 89 N. Y. 24, 42 Am. Rep. 271. The condition presented in the statute (section 1902, supra), that the wrongful act, neglect or default by which the decedent's death was caused must be such as would have entitled the party injured to maintain an action, has reference to the circumstances of the injury, and the character of the act including the question of contributory negligence. Littlewood v. Mayor, etc., of N. Y., supra.

Under the New York Workmen's Compensation Law there is given to the state or the insurance carrier a right of action against the wrongdoer for the amount awarded and paid out by or under the direction of the Compensation Commission. Consol. Laws, c. 67 (Laws 1914, c. 41) § 29. It is obvious that this right of subrogation must be based on a cause of action, and the alleged wrongdoer is not obliged to respond for the amount paid out of the insurance fund or by the insurance carrier, unless he would be legally liable for damages at common law. This, therefore, would necessitate common-law proof of negligence, and that, in the case at bar, would at once demonstrate that the injury ensued as the result of a maritime tort. And so, to say that the cause of action, having arisen upon the death of the decedent, was not, therefore, maritime in character, would, it seems to me, leave the state or the insurance carrier remediless, for the reason that proof of the cause of death would show that the same was due to negligence while the decedent was engaged in the performance of a maritime contract, and hence, under the ruling of the United States Supreme Court in the cases supra, the steamship company here, found by the jury to have been a joint wrongdoer with the employer, would be in the immediate position of asserting that the Workmen's Compensation Commission was without jurisdiction in the premises. So much for reasoning which, to my mind, soundly opposes the contention of the moving defendant at bar.

But reasoning apart, the moving defendant's proposition falls upon a consideration of other cases which it is enough to cite. That of The

Chiswick, 231 Fed. 452, 145 C. C. A. 446, is controlling, as well as illustrative. It was there held that the injury of a stevedore, while employed in discharging a vessel, through the defective appliance furnished by the ship, constitutes a "maritime tort," and where death resulted after his removal from the ship, a remedy given by the state statute may be enforced and relief given in admiralty. Likewise, in the Anglo-Patagonian, 235 Fed. 92, 148 C. C. A. 586, it was held that the fact that a workman injured while at work in a boat was taken therefrom to a hospital on land, where he died, does not affect the jurisdiction of the admiralty court over a suit for his death, which is fixed by the place of the injury. See, also, The Strabo, 98 Fed. 998, 39 C. C. A. 375; Hamburg, etc., v. Gye, 207 Fed. 247, 124 C. C. A. 517; The Aurora (D. C.) 163 Fed. 633. None of these cases which oppose the ruling in the Ryley Case (supra) were brought to the attention of the court by counsel and it seems to me that they should not have been overlooked in the course of ordinary research.

As, therefore, the fact of the death on shore is not the test of jurisdiction in admiralty, but such jurisdiction is dependent upon the locus injuriæ, it is plain that the plaintiff did not possess a remedy under the Workmen's Compensation Law of the state of New York, and that she was limited in her procedure to the action in rem in the admiralty court or to her common-law action which is the one at bar. "The work of a stevedore in which the deceased was engaged is maritime in its nature; his employment was a maritime contract; the injuries which he received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction. *** In other words, the admiralty court has exclusive jurisdiction of maritime contracts, except in so far as the parties have common-law remedies which they may assert, and if an employee under a maritime contract receives an injury he must look either to the common law or to the admiralty jurisdiction for his remedy." Sullivan v. Hudson Nav. Co., 182 App. Div. 152, 162, 169 N. Y. Supp. 645, 651.

As to the second contention, whilst it is true that the plaintiff as well as the insurance carrier both proceeded upon the assumption that the remedy provided by the Workmen's Compensation Law was available, and that pursuant thereto an award and part payment had actually been made, the insurance carrier ceased to make further payments upon the rendition of the decisions in the Jensen and Walker Cases, supra. There was no estoppel by the plaintiff's election to so proceed, when she thought or was advised that that was the only relief obtainable, as the New York State Workmen's Compensation Commission was without jurisdiction to make such an award and either party was at liberty to refuse to act thereunder at any time. See Matter of Doey, 224 N. Y. 30, 120 N. E. 53; Sullivan v. Hudson Nav. Co., supra. The motion is denied.

Vol. IV-Comp. 35.

SUPREME COURT OF OHIO.

THORNTON
V.

DUFFY ET AL. (No. 15999.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-LEGISLATIVE POWER.

The enactment of the Workmen's Compensation Law (103 Ohio Laws, pp. 72-92) did not exhaust the authority conferred upon the General Assembly of Ohio by section 35 of article 2 of the Constitution. On the contrary, it has the power to amend or repeal all or any portion thereof at any time it deems proper.

(For other cases, see Master and Servant, Dec Dig. §347.)

2. MASTER AND SERVANT-STATE INSURANCE FUND-CONTRACTS OF INDEMNITY-LEGISLATIVE POWER.

Contracts of indemnity entered into between an employer of labor and an insurance company since the adoption of section 35 of article 2 of the Constitution are subject to the exercise by the General Assembly of the power so conferred upon it to compel all employers of labor to contribute to the state insurance fund, or to impose further conditions or restrictions upon the privilege of electing to pay compensation direct. (For other cases, see Master and Servant, Dec. Dig. § 347.)

3. MASTER AND SERVANT-PAYMENT OF COMPENSATION— CONSTITUTIONALITY OF STATUTE.

The act of March 20 1917 (107 Ohio Laws, pp. 157, 159), amending section 1465-69, Page & A. Gen. Code, is a valid and constitutional exercise of the authority conferred upon the General Assembly of Ohio by section 35 of article 2 of the Constitution of Ohio, and applies to all employers of labor mentioned in section 1465—60, General Code.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

Error to Court of Appeals, Franklin County.

Petition for injunction by Frank C. Thornton against Thomas J. Duffy and another, as members of the Industrial Commission of Ohio, with answer and cross-petition by the Cleveland Stamping & Tool Company, praying for the same relief. General demurrers to such petition and answer sustained by the common pleas court, and from a judgment of the Court of Appeals, on appeal, awarding plaintiff, Thornton, a temporary restraining order and denying a perpetual injunction, and sustaining the demurrer to the answer and cross-petition, Thornton brings error. Affirmed.

The petition of Frank C. Thornton avers that he has in his employ more than 40 workmen and operatives regularly employed in the same business in and about his manufacturing establishment under contracts of hire.

That the defendants, Thomas J. Duffy and Herbert L. Eliot, are the duly appointed and qualified members of the Industrial Commission of Ohio, that there is a vacancy in the commission, and that the two persons *Decision rendered, Dec. 31, 1918. 124 N. E. Rep. 54. Syllabus by the Court.

named are the only members of the commission at the time of the filing of the petition.

That in January, 1914, upon evidence duly submitted, the Industrial Commission of Ohio made its finding of facts, certifying that plaintiff was of sufficient financial ability and credit to render certain payments in compensation to injured employees and dependents of killed employees, and the furnishing of medical, surgical, nursing, and hospital attention, services, and medicine, and funeral expenses, equal to or greater than is provided in the act of the General Assembly passed February 26, 1913. 103 Ohio Laws, p. 72.

That thereupon he gave bond with security approved by the commission, and paid the amount required into the state insurance fund, to be credited to the surplus provided for in paragraph 2 of section 1465-69 of the Page & A. General Code of Ohio (see 103 Ohio Laws, p. 80), and thereupon elected to pay individually such compensation and furnish such medical, surgical, nursing, and hospital services and attention and funeral expenses directly to the injured and dependents of the killed employees of plaintiff, as provided in section 1465-69. General Code, and has since that time continually abided by the rules of the Industrial Commission of Ohio, maintained the required bond and paid the required amount at its maturity credited to such surplus.

That since January ,1914, he has been and is now of sufficient financial ability and credit to render certain the payment of such compensation, and that the commission has not at any time changed, modified, or revoked its finding of fact, and the same is in full force and effect.

That in January, 1914, he made and entered into a written contract with the Etna Life Insurance Company of Hartford, Conn., wherein the said company agreed to pay to the injured employees of plaintiff such amounts for medical, nursing, and hospital services and medicine, and such compensation as were and should be provided by section 1465-41a and section 1465-106, General Code, and amendments thereof, to indemnify this plaintiff against liability for the payment of any such amounts to injured employees or dependents of killed employees.

That the plaintiff agreed to pay the Etna Life Insurance Company an estimated premium computed at an agreed rate upon the pay rolls of wages to be paid by plaintiff to his employees from April 29, 1914, to April 29, 1915, and a like amount annually thereafter until the contract of insurance should be cancelled in accordance with the terms written therein.

That by the terms of this contract either party thereto might cancel the same on and after 30 days' written notice to the other party of its intention to do so, but that otherwise the contract of insurance should continue in force indefinitely.

The petition also avers further facts in reference to additional premiums or rebates thereon, based upon the actual pay roll during the time the contract of insurance should be in force.

It avers that on the 1st day of December, 1917, the defendants, Thomas J. Duffy and Herbert L .Eliot, then composing the Industrial Commission of Ohio, adopted a resolution reciting the act of the General Assembly passed February 16, 1917 (107 Ohio Laws, p. 6), amending section 1465-101, General Code, and the act of the General Assmbly passed March 20, 1917 (107 Ohio Laws p. 159), among other things amending section 1465-69, General Code, and the act of the General Assembly of state of Ohio passed March 21, 1917 (107 Ohio Laws, p. 647), amending section 9607-2, paragraph 2, General Code, and declaring that no employers shall be permitted to pay or furnish directly to injured employees, or the dependents of killed employees, the compensation and benefits provided in sections 1465-41a to 1465-106, General Code if such employers shall, by contract or otherwise, provide for the insurance of the payment by them of such compensation and benefits, or shall indemnify