Wooley v. E. M. Wichert Co.

Per Curiam, Plaintiff’s husband, an employee of defendant company as a fireman on a derrick boat, was drowned in the [169] Monongahela River, while in the course of his employment. At the time of the accident defendant was engaged in the erection of a wall on land of the Pittsburgh Steel Products Company, near the town of Alien-port, Washington County. The boat on which deceased was employed was anchored within the harbor line, outside of the river channel, and used for excavating purposes, handling material and other work incidental to the construction of the wall. The work was an exclusively private enterprise and not in any manner connected with navigation. About one o’clock in the morning of November 22, 1917, deceased disappeared from his customary place on the boat and later his body was found in the river. A claim petition, filed by plaintiff under the Workmen’s Compensation Act, secured an award in her favor on April 11,1918, from which no appeal was taken. On August 8, 1920, 133 weeks after the award, defendant petitioned the compensation board to terminate its order for compensation, alleging the case to be within admiralty jurisdiction and the referee, consequently, without authority to make an award; and, in support of its contention, cited Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. Both the referee to whom the petition was referred and the compensation board, upon appeal, having refused to terminate the award, an appeal was taken to the Common Plea& of Armstrong County, which sustained their action. This appeal followed. Two reasons are assigned in support of the application: (1) the legal status of dependents had changed and (2) the Workmen’s Compensation Board was without jurisdiction to hear the case. Neither of these reasons can be sustained: as to the first, no evidence was adduced to show a change of status of the parties, as required by section 413 of the Compensation Act and unless such evidence is produced the compensation previously awarded cannot be either changed or terminated. Defendant contends the amendment to section 256 of [170] the Judicial Code of the United States, which saved to claimants rights and remedies under the Workmen’s Compensation Acts of the several states, having been declared unconstitutional by the United States Supreme Court, since the award was made in this case, that action worked a change in the status of the parties. We cannot accept that view of the law. It was the duty of defendants to raise the jurisdictional question at the time the case was heard and not at this late day, which is after the time allowed by the statute for appeal. To sustain the petition would, in effect, be to grant a new trial after the time fixed by the statute, which we are not authorized to do. Aside from this conclusion which alone is a sufficient answer to the petition, the ease does not come within admiralty jurisdiction. The employment of deceased was nonmaritime, and, although the derrick boat was moored in the waters of a navigable stream adjoining the shore, neither the work of deceased nor the purpose of the boat had relation, either direct or indirect, to navigation or commerce. The case of Knickerbocker Ice Co. v. Stewart, referred to above, is not in conflict with the conclusion here reached. There, deceased was engaged in maritime employment as a bargeman; here, as stated above, the nature and character of the work in which deceased was employed was entirely nonmaritime, therefore the State had jurisdiction and the parties were subject to the Workmen’s Compensation Law: Erie R. R. v. Welsh, 242 U. S. 303. The judgment is affirmed.