Ellamar Mining Co. v. Possus

GILBERT, Circuit- Judge (after stating the facts as above). The defendant contends that, if the plaintiff is entitled to any compensation or damages for his injuries, he must seek the same under the Workmen’s Compensation Act alone, and cites Ross v. Erickson Const. Co., 89 Wash. 634, 155 P. 153, L.R.A.1916F, 319, a case in which it was held that the purpose of the Industrial Insurance Law of Washington (3 Rem. & Bal. Code, §§ 6604 — 1 et seq.) was to remove from the courts personal injury actions by employés, and was intended to cover, not only injuries, but all aggravations through negligence of a physician engaged by the master and paid out of sums deducted from the wages of employés. But the Industrial Insurance Law of Washington differs materially from the Workmen’s Compensation Act of Alaska. The intention of the Washington law, as expressed in the terms thereof, was to withdraw from private controversy all phases of civil causes for personal injuries to employés, and to abolish the jurisdiction of courts over such causes, and the Supreme Court in the case cited held that the purpose of the act was to end all litigation growing out of, incident to, or resulting from the primary injury, and in lieu thereof to give the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone. Support of that view of the law was found in the fact that provision was made that compensation allowed under the act might be readjusted if aggravation of the disability should take place or be discovered. Again, in Stertz v. Industrial Insurance Com., 91 Wash. 588, 158 P. 256, it was said: “Ours is not an employer’s liability act. It is not even an ordinary compensation act. It is an industrial insurance statute. Its administrative body is entitled the ‘Industrial Insurance Commission.’ All the features of an insurance act are present. Not only are all remedies between master and servant abolished, and, in the words of the [664] statute, all phases of them withdrawn from private controversy, but the employé is no longer to look to the master even for the scheduled and mandatory compensation.” The essential features of the Workmen’s Compensation Act of Alaska are the limitation of its provisions to cases of death or injury to employés in the “mining industry of the territory,” the limitations and specifications of the amount recoverable in case of death or injury, and the specified disabilities, and the joinder in one action of all claimants injured from the same cause. It provides for a trial to be maintained and determined in and by the courts of the territory, and to be governed by the law of procedure applicable to other actions fdr the recovery of money. The judgment when rendered creates a personal liability against the employer, and not against a fund created by contributions from or assessments against other employers. We are of the opinion that under the act the plaintiff could not recover for aggravation to his injuries as pleaded in his second count. The act limits recovery thereunder to cases of death or injury arising “out of and in the course of employment.” That phrase is one that is commonly used in workmen’s compensation acts, and its meaning has been determined in numerous decisions. “This phrase embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly or indirectly, the master’s business.” 5 Labatt’s Master and Servant, § 1806. An injury arises out of the employment if there is a causal connection between the working conditions and the injury, and it must be possible to trace the injury to the nature of the employer’s work, or to the risks to which the employer’s business exposes the employé. Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 P. 212, L.R.A.1916F, 1164; Kimbol v. Industrial Accident Commission, 173 Cal. 351, 160 P.150, L.R.A.1917B, 595. In Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 P. 403, L.R.A.1916E, 1201, construing the Compensation Act of Kansas (Laws 1911, c. 218), the court held that recovery can be had only upon the basis of disability resulting from injury received in the course of employment, and that it cannot be augmented by the fact that the disabling effects of [665] the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor. The court said: “So much of an employé’s incapacity as is the direct result -of unskillful medical treatment does, not arise ‘out of and in the course of his employment’ within the meaning of that phrase as used in the statute. * * * For that part of his injury his remedy is against the persons answerable therefor under the general law of negligence.” Of similar import is the decision of the Supreme Court of California in Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P. 24. Error is assigned to the trial court’s ruling that the causes of action were properly joined. The Compiled Laws of Alaska, § 916, provide: “The plaintiff may unite several causes of action in the same complaint when they all arise out of: First, contract, express or implied; * * * second, injuries with or without force to the person. * * * But the causes of action so united must all belong to one only of these classes, and must affect all the parties to the action and not require different places of trial, and must be separately stated.” Passing by the question whether or not the two causes of action here pleaded are for injuries “with or without force to the person,” we entertain no doubt that they come within the first clause, in that they arise out of “contract express or implied.” The Workmen’s Compensation Act of Alaska is elective and not compulsory. It applies to those only who choose to avail themselves of its provisions, and agree to abide by its terms. All rights thereunder have their origin in the agreement of the parties. The plaintiff in his first cause of action does not recover on a liability arising out of the defendant’s negligence, but on a liability arising out of contractual obligation, and which exists irrespective of the defendant’s negligence. Winfield v. Erie R. Co., 88 N.J.Law, 619, 96 A. 394. In Madden’s Case, 222 Mass. 487, 496, 111 N.E. 379, 383, L.R.A.1916D, 1000, it is said: “It is plain and has been said repeatedly that the act eliminates all consideration of tort, penalty, or negligence, save where there has been ‘serious and willful misconduct.’ ” [666] Several assignments of error relate to exceptions to instructions given, and denial of instructions requested. They are all so plainly without merit as to require no discussion. The judgment is affirmed.