Opinion
James T. Lawler, of Seattle, Wash., for plaintiff.
Charles H. Winders, of Seattle, Wash., for defendant.
NETERER, District Judge.
This is an action by the plaintiff, surviving widow, to recover from the defendant damages occasioned because of the death of her husband, which she charges is due to the negligence of the defendant company. The complaint, in substance, alleges that the deceased was employed by the Chicago, Milwaukee & St. Paul Railway Company, and that while in the due course of his employment the defendant Northern Pacific Railway Company ran into and upon the engine upon which the deceased was employed, negligently and carelessly causing his death. The defendant demurs to the complaint, on the ground that:
'It does not state facts sufficient to constitute a cause of action against the defendant.'
And further:
'That this court has no jurisdiction of the subject-matter of this action, for the reason that it affirmatively appears under the allegations of plaintiff's complaint that at the time of the fatal accident to Theodore V. Madden, on account of whose death this action is brought, said Madden was working in the course of his employment within the plant and upon the property of his employer, within the city of Seattle, King county, Washington, and his heirs were within the protection of what is known as the Workmen's Compensation Act of the state of Washington, which act withdraws the jurisdiction of all courts in all actions for wrongful death and coming thereunder.'
Defendant, in support of its contention, cites Ross v. Erickson Construction Co., 89 Wash. 634, 155 P. 153, L.R.A. 1916F, 319. This was an action to recover for damages claimed to have been occasioned by reason of malpractice of the attending surgeon, furnished by the master at the time of the injury, pursuant to a condition of the employment, whereby $1 a month was retained out of the wages of the employes for the purpose of furnishing medical skill. The claim for damages sustained on account of the primary injury had been presented to the Industrial Insurance Commission and full settlement made. The issue before the court was whether, under the circumstances, the settlement for the primary injury did not include all damages occasioned, and it was held that the action could not be prosecuted. Stertz v. Industrial Ins. Commission, 91 Wash. 588, 158 P. 256, also cited by the defendant, was an action brought against the Insurance Commission for injury caused by a discharged employe, who waylaid the logging train of the employer and wounded one and killed others of the workmen, including Stertz, who was in charge of the train as foreman. The question for decision was whether the plaintiff was killed in the course of his employment, either upon the premises or away from the plant, and the court held that he was and directed judgment against the Commission. In Meese et al. v. Northern Pacific Ry. Co. (D.C.) 206 F. 222, and Northern Pac. R. Co. v. Meese, 239 U.S. 614, 36 Sup.Ct. 223, 60 L.Ed. 467, it was held that a person injured 'at the plant,' from whatever agency, came within the Industrial Insurance Act.
Section 8 (page 362, Laws 1911) of the Insurance Act provides:
'In respect to any injury happening to any of his workmen during the period of any default in the payment of any premium under section 4, the defaulting employer shall not, if such default be after demand for payment, be entitled to the benefits of this act, but shall be liable to suit by the injured workman * * * as he would have been prior to the passage of this act.'
The Legislature in the same act, undertook to withdraw all phases of liability for negligence from private controversy, and provided 'sure and certain relief for workmen,' and abolished 'all civil actions and civil causes of action for such personal injuries,' and abolished all jurisdiction of the courts over such causes except as in the act provided. The Supreme Court of Washington, in Acres v. Frederick & Nelson Co., 79 Wash. 402, 140 P. 370, held that it was the duty of the party invoking the Industrial Insurance Act provisions to plead and prove compliance with the act, in view of the provisions of section 8, supra, and the same court in Reynolds v. Day, 79 Wash. 499, at page 507, 140 P. 681, at page 685, L.R.A. 1916A, 432, said:
'We again impress the fact that the common-law action may still be maintained and its remedy enforced as against an employer in this state in all cases not specifically covered by the Industrial Insurance Act. Moreover, the Industrial Insurance Act, upon which the respondents rely as the sole manifestation of a public policy of this state inimical to the common-law action, expressly excepts cases where the employer is in default in his contribution to the statutory insurance fund. We have held that such payment is a matter of affirmative defense, which must be pleaded and proved, in order to defeat an action at law against the employer for injury to his employe.'
With equal, if not greater, emphasis would this apply to a third person who committed the injury, if seeking to evade liability by reason of the provisions of the act, to show that the employer of the injured person had complied with its requirements. The same court, in Replogle v. Seattle School District No. 1, 84 Wash. 581, at page 584, 147 P. 196, at page 197, said:
'This court, in an action for personal injuries prosecuted by a servant against his master, held that it was the duty of the latter to plead and prove a
Page 983.
compliance with the Industrial Insurance Act as a condition precedent to making the objection that the Industrial Insurance Law had withdrawn the action from the courts.'
The rule of procedure in the state court, I think, should apply in this case. Section 721, Rev. Stat. U.S. (Comp. St. 1916, Sec. 1538).
Under these decisions the complaint is sufficient, and the demurrer is overruled.