Murray v. Gerrick & Company, 172 Wash. 365, 20 P.2d 591


(1933).

                MURRAY v. GERRICK & COMPANY.      365
 Mar. 1933               Statement of Case.

      [No. 24301. Department Two. March 24, 1933.]
      MAXINE MURRAY, on Her Own Behalf and as Guardian
           ad Litem of MAXINE LOIS MURRAY, a Minor,
           Appellant, v. JOE GERRICK & COMPANY
                    et al., Respondents. «1»

[1] MASTER AND SERVANT (204) - STATES (1) - SOVEREIGNTY AND
JURISDICTION - TERRITORY CEDED TO UNITED STATES - OPERATION
OF STATE LAWS - WORKMEN'S COMPENSATION. The jurisdiction of
the Federal government over the Puget Sound Navy Yard
having become effective prior to the enactment of the state
industrial insurance act, that act did not extend to the navy
yard, unless the jurisdiction was extended by act of Congress.

[2] SAME. The workmen's compensation act, abolishing all civil
actions for injuries in extrahazardous employments (except
where the employer had not contributed to the fund) was
not extended over the Puget Sound Navy Yard, by the act of
Congress of 1928, 45 U. S. Stat. 54, providing that actions
for the wrongful death of any person within a national park
or other place subject to the jurisdiction of the United
States within the exterior boundaries of any state shall be
governed by the laws of such state; since the industrial
insurance act could not be made thus applicable in part and
in part not applicable.

[3] DEATH (13) - ACTIONS FOR WRONGFUL DEATH - PERSONS ENTITLED.
The widow in her individual capacity and as guardian ad
litem for her minor child cannot maintain an action for the
wrongful death of the husband and father, in view of Rem.
Rev. Stat., SS 183, which provides that such action must be
brought by the personal representative of the deceased; and
Id., SS 308-2, relating to the Joinder of parties and
causes, does not change the rule.

Appeal from a judgment of the superior court for
Kitsap county, Sutton, J., entered November 22, 1932,
dismissing an action for wrongful death, upon sustaining
a demurrer to the complaint. Affirmed.

Wm. Martin, for appellant.

Stephen V. Carey and Henry T. Ivers, for respondents
Gerrick & Company et al.


«1» Reported in 20 P.2d 591.

 366    MURRAY v. GERRICK & COMPANY.
                    Opinion Per MAIN, J.           172 Wash.

J. Speed Smith and Henry Elliott, Jr., for respondents
Industrial Brown Hoist Corporation et al.

MAIN

MAIN, J. - This action was brought to recover damages
for wrongful death. To the complaint, a demurrer
was interposed and sustained. An amended complaint
was filed, and a demurrer to that was likewise interposed
and sustained. The plaintiff elected to stand
upon the amended complaint and refused to plead
further. Judgment was entered dismissing the action,
from which she appeals.

The facts, as stated in the amended complaint, so
far as they are necessary to present the questions here
for determination, may be summarized as follows: On
or about October 1, 1931, the respondent R. W.
Kaltenbach Corporation entered into a contract with
the United States government for the construction of
a twenty-ton traveling steel tower crane at the Puget
Sound navy yard at Bremerton, this state. The
Kaltenbach corporation contracted with the Industrial
Brown Hoist Corporation to furnish the work, labor
and materials used in the construction of the crane.
Louis Henry Murray was employed to work upon, and
in the construction of, the crane as a structural steel
worker.

On or about June 17, 1932, Murray entered into the
employment as such steel worker at a wage of $1.10
per hour, the time to start when he left Seattle, where
the contract of employment was made; and the time
was to continue until he returned there. Murray began
the work for which he was employed, and while so
engaged, on June 21, 1932, he fell from the steel crane
a distance of about twenty-five feet, and sustained
injuries from which he died within a day or two thereafter,
leaving the appellant Maxine Murray, his widow,
and Maxine Lois Murray, his only child, a minor three
years of age, surviving.

                MURRAY v. GERRICK & COMPANY.      367
 Mar. 1933               Opinion Per MAIN, J.

Negligence is charged in a number of particulars,
and it is further alleged that the work in which Murray
was engaged was extrahazardous. The employers of
Murray had not paid to the state director of labor and
industries the premium upon its estimated payroll.
By the allegations of the amended complaint, it is
sought to state a cause of action under the industrial
insurance law of this state where the employer has not
given notice to the department of labor and industries
and paid the premiums upon his estimated payroll.

The industrial insurance act of this state (Chapter
74, Laws of 1911, p. 345, Rem. Rev. Stat., SS 7673) was
passed a number of years subsequent to the time this
state, by legislative enactment, gave its consent to
the acquisition of the Puget Sound navy yard by the
Federal government and ceded exclusive jurisdiction
thereto.

[1] The first question to be determined is whether
the industrial insurance act extends over the navy
yard, which is subject to the jurisdiction of the Federal
government.

In State ex rel. Grays Harbor Construction Co. v.
Department of Labor & Industries,
167 Wash. 507, 10
P.2d 213, it was held that exclusive Federal jurisdiction
over Rainier national park having been acquired
through consent of the state subsequent to the
passage of the state industrial insurance act, which
was in force within the boundaries of the park at the
time jurisdiction was ceded, the act remained in force
as to private rights within the park until such time as
Congress passed an act which superseded it. In the
course of the opinion, it was said:

"Prior to the time that the governor of this state
was so notified, and in the year 1911, the workmen's
compensation act was passed. At that time, the cession
of the jurisdiction over the park area to the Federal

 368    MURRAY v. GERRICK & COMPANY.
                    Opinion Per MAIN, J.           172 Wash.

government had not become effective, and did not become
effective until approximately five years later.
The Federal jurisdiction over the park area not having
become effective when the workmen's compensation
act was passed, that act was in force and operative
within the boundaries of the park. The workmen's
compensation act having been passed before the cession
of the jurisdiction over the park area became
effective, it remained in force in the ceded territory
until displaced by Congress. [Citing authorities.]"

From the holding in that case, it necessarily follows
that, the jurisdiction of the Federal government over
the navy yard having become effective by consent of
the state prior to the passage of the industrial
insurance act, that act would not extend to the navy yard
unless the Federal Congress should pass an act which
would so extend it; and it is contended that this is
what Congress has done.

[2] In 1928, Congress passed an act (45 Stat. 54)
the title of which was as follows:

"An Act concerning actions on account of death or
personal injury within places under the exclusive
jurisdiction of the United States."

In the body of the act, it was provided that, in the
case of the death of any person by the neglect or
wrongful act of another within a national park or
other place subject to the jurisdiction of the United
States, within the exterior boundaries of any state,

". . . such right of action shall exist as though
the place were under the jurisdiction of the State
within whose exterior boundaries such place may be;
and in any action brought to recover on account of
injuries sustained in any such place the rights of the
parties shall be governed by the laws of the State
within the exterior boundaries of which it may be."
Title 16, U. S. C. A., SS 457.

It will be observed that, by this act, in the body
thereof, it says "such right of action," which means

                MURRAY v. GERRICK & COMPANY.      369
 Mar. 1933               Opinion Per MAIN, J.

the actions mentioned in the title concerning death or
injury within places under the exclusive jurisdiction
of the United States which are within the exterior
boundaries of any state.

Section 1 of the industrial insurance act, as passed
in 1911, after making certain recitals, provides:

"The State of Washington, therefore, exercising
herein its police and sovereign power, declares that all
phases of the premises are withdrawn from private
controversy, and sure and certain relief for workmen,
injured in extrahazardous work, and their families and
dependents is hereby provided regardless of questions
of fault and to the exclusion of every other remedy,
proceeding or compensation, except as otherwise provided
in this act; and to that end all civil actions and
civil causes of action for such personal injuries and
all jurisdiction of the courts of the state over such
causes are hereby abolished, except as in this act
provided." Rem. Rev. Stat., SS 7673.

Here is a provision which expressly abolishes all
civil actions and civil causes of action for personal
injuries in extrahazardous work, except as provided
therein. There is nothing in the language of the Federal
act which would indicate an intention on the part
of Congress to extend the industrial insurance act over
the navy yard, which is subject to the exclusive
jurisdiction of the United States and within the exterior
boundaries of this state. Had such been the intention,
Congress, undoubtedly, would have plainly so indicated.
The case of International Stevedoring Co. v.
Havetry, 272 U. S. 50, would not support a construction
of the act of Congress here involved which would
extend the industrial insurance act over the navy yard.
In that case, the court construed the Federal marine
act of June 5, 1920, which used the word "seaman,"
to include "stevedores," because they were engaged in
the same marine duties.

 370    MURRAY v. GERRICK & COMPANY.
                    Opinion Per MAIN, J.           172 Wash.

As already pointed out, the industrial insurance act
has taken away all right of action except that therein
provided for, and the Federal act refers to rights of
action. It is true that the industrial insurance act
contains a provision that, if the employer does not pay
into the industrial insurance fund, and an injury occurs
to a workman while the employer is so in default, the
action may be brought by the injured employee against
the employer, and the common law defenses shall not
be available. If it should be held that, under this
provision of the act, an action could be maintained for an
injury occurring in the navy yard, which is subject to
the exclusive jurisdiction of the United States, then we
would have a situation where a part of the industrial
insurance act would extend to the navy yard and a
part would not.

There is no question but that an action may be
maintained under the law as it existed in this state at
the time the Federal government acquired jurisdiction
over the navy yard, since Congress, so far as we are
informed, has passed no act which has displaced that
law in the ceded territory. In neither of the cases of
Hilding v. Department of Labor and Industries,
162 Wash. 168,
298 Pac. 321, and Nickell v. Department of
Labor and Industries, 164 Wash. 589, 3 P.2d 1005,
was the question here presented considered or decided.

We are of the view that the amended complaint did
not state a cause of action under the industrial
insurance law. Whether it stated a cause of action under
the law at the time jurisdiction over the navy yard was
ceded to the United States, it is not necessary here
to determine.

[3] The next question is whether the action was
brought in the name of the proper party. As already
appears, it was brought by the widow in her individual
capacity and as guardian ad litera for the minor child.

                MURRAY v. GERRICK & COMPANY.      371
 Mar. 1933               Opinion Per MAIN, J.

It was not brought as administratrix of the estate of
the deceased or in a representative capacity.

In chapter 123, Laws of 1917, p. 495, SS 1, Rem. Rev.
Stat., SS 183, it is provided that, when the death of a
person is caused by the wrongful act, neglect or default
of another, "his personal representative may maintain
an action for damages against the person causing the
death; . . ." Construing this statute in Broughton
v. Oregon-Washington Railroad and Navigation Co.,
137 Wash. 135, 241 Pac. 963, it was held that actions
for damages for wrongful death must be brought by the
personal representative of the deceased. It was there
said:

"If it be assumed that the action was brought under
state statutes, we are of the opinion that the court's
decision was right upon the ground of the incapacity
of appellants to bring the action. Section 183, Rem.
Comp. Stat., provides that all actions for damages
against a person causing the death of another shall be
brought by the personal representative of the deceased.
We have had occasion to construe this statute on many
occasions to this effect. Machek v. Seattle,
118 Wash. 42, 203 Pac. 25; Howe v. Whitman County,
120 Wash. 247, 206 Pac. 968; Castner v. Tacoma Gas & Fuel Co.,
123 Wash. 236, 212 Pac. 283."

Cases holding to the effect that the objection that
the action is not brought in the name of the proper
party must be timely made are of no controlling importance
here, because in this case the respondents
raised the question upon their first appearance and
continued to insist upon it. Attention is called to
Rule of Practice II, Rem. Rev. Stat., SS 308-2; but there
is nothing in that rule which would sustain the right to
maintain the action by a person other than the representative
of the deceased.

The judgment will be affirmed.

BEALS, C. J., TOLMAN, BLAKE, and STEINERT, JJ.,
concur.