
    The State, ex rel. The Cleveland Engineering Construction Co., v. Duffy et al., Industrial Commission of Ohio.
    
      Workmen’s compensation — Injuries in maritime employment— Jurisdiction not conferred by agreement of employer and employe — Jurisdiction in court of admiralty, when — Mandamus.
    
    An agreement between employer and employe to submit themselves to the provisions of the Workmen’s Compensation Act in the event of injury to the employe cannot confer jurisdiction upon the Industrial Commission to grant relief under such act for injuries occurring in a purely maritime employment, which employment has direct relation to commerce and navigation, over which a court of admiralty has jurisdiction. A writ of mandamus seeking to compel the Industrial Commission to entertain such jurisdiction should be denied.
    Workmen’s Compensation Acts, C. J. § 32.
    (No. 18896
    Decided December 1, 1925.)
    In Mandamus.
    The facts are stated in the opinion.
    
      Mr. George B. Marty, for petitioner.
    
      Mr. C. C. Grabbe, attorney general, and Mr. R. R. Zurmehly, for defendant.
   Day, J.

This case was before the court at an earlier day of this term upon the demurrer to the petition (ante, 96, 148 N. E., 572), which was overruled upon the ground that it did not appear that the application of the Workmen’s Compensation Act (General Code, Sections 1465-37 to ,1465-108), with reference to which plaintiff and its employe had contracted, would work prejudice to any characteristic features of the general maritime law or interfere with the proper harmony or uniformity of that law in its international or interstate relations.

Since the hearing on demurrer, an answer has been filed, in which the defendant says that it “denies that it refuses to receive premiums based on the wages or payroll of any of the men engaged in the employments mentioned in the plaintiff’s petition, save and except when such men are engaged in employments which are maritime employments, and a court of admiralty would have jurisdiction in case any of the men were injured while so employed.”

A motion for judgment on the pleadings' has been filed by both parties. The petition contains the following averment:

“Petitioner says that its employes in the above classifications desire to accept compensation under the Workmen’s Compensation Law of Ohio, in lieu of and in preference to their rights under the maritime law in all cases of injury or loss of life while engaged in said employments. ’ ’

It is to be borne in mind that this record does not present a concrete case of injury; but the plaintiff has set forth eight different classes of employment in which its workmen are engaged. Probably most of such employment will be local in character and of a nonmaritime nature. However, it is possible, and, indeed, probable, that some of the men in certain of the classes named may at some time, while in plaintiff’s employ, be engaged in work which is purely maritime which has direct relations to navigation and the characteristic features of the general maritime law.

Plaintiff relies upon the case of Grant Smith-Porter Ship Co. v. Rohde, 257 U. S., 469, 42 S. Ct., 157, 66 L. Ed., 321, 25 A. L. R., 1008. In that case it was held that, in view of the exclusive features of the Oregon Workmen’s Compensation Law, the right of the employe to recover damages in an admiralty court should be denied; the employer and employe having contracted with reference to the compensation law. It is, however, to be borne in mind that the decision in that case held that “the parties [had] contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential.”

The application of the exclusive features of the Oregon Compensation Act, as abrogating the right to recover damages in a court of admiralty, which would otherwise exist, was made under the particular circumstances in that case, which were such that the court found would work no material prejudice to the general maritime law.

Upon the record in this case we cannot say but that at some time some of the employes in the classes set forth in the petition may be engaged in work purely maritime in character and nature', and then the rights and liabilities of the parties would be controlled by the general rules of maritime law.

In the event such contingency arises, we are of opinion that the employer and employe cannot by contract between themselves deny a court of admiralty jurisdiction and confer the same exclusively upon the Industrial Commission.-

The' Commission should, however, receive premiums based upon the full pay roll presented at the beginning of the period of coverage, subject to deduction of the amount of wages paid to employes while engaged in purely maritime work.

The record disclosing that the Industrial Commission is ready and willing to so accept premiums upon the full pay roll of the plaintiff, on all classes of workmen set forth in its petition, and to retain jurisdiction thereof in accordance with the state law, in matters of injuries which are nonmaritime, subject to such deductions, we see no reason for granting the extraordinary remedy of mandamus. A clear right thereto not appearing, it follows that the writ of mandamus should be denied.

Writ denied-

Jones, Matthias, Kinkade and Robinson, JJ., concur.

Marshall,, C. J.

I dissent from the judgment entered by the majority of the court in this case, but not upon the ground that there is any erroneous determination of legal principles, but on the sole ground that the principles declared by the majority, and in which I concur, require a contrary judgment to be (entered when applied to the issues of this case.

It was determined by all the members of this court, upon a demurrer to the petition in this case, that employes engaged in maritime employment® are not entitled to participate in the state insurance fund, and it was also determined, all members of the court concurring, that those employes engaged in nonmaritime employments are entitled to participate and to receive the benefits of workmen’s compensation.

It clearly appears that the Cleveland Engineering & Construction Company employs a largé number of men, each of whom is sometimes engaged in nonmaritime employment, and that it cannot be determined at the time of the payment of the premiums into the insurance fund what proportion of their time will be thus employed.

All members of this court are agreed that the Industrial Commission should receive premiums based upon the entire pay roll of the Cleveland Engineering & Construction Company, if tendered, and that at the end of each six-month period there should be a rebate of that portion of the premium so paid which is based upon the labor performed by the employes in maritime employments.

Based upon these determinations reached by unanimous concurrence of all members of the court, it only remains to see what application should be made of such law to the issues involved. The petition states that money was tendered covering all employment. Under the principles declared by this court it becomes the duty of the defendant to receive the money so tendered and make a rebate at the end of the six-month period. The court has, however, ordered that the petition be dismissed and the writ of mandamus denied. This judgment is upon the theory that the defendant, the Industrial Commission, has complied, with the order of the court, and the relator has therefore received all it is entitled to receive.

We must look to the answer to determine whether the defendant has made full compliance. In the answer we find the following:

Defendant “denies that it refuses to receive premiums based on the wages or payroll of any of the men engaged in the employments mentioned in the plaintiff’s -petition, save and except when such men are engaged in employments which are maritime employments.”

It seems very- clear that the defendant has not expressed a willingness, to receive all premiums tendered, and it seems equally clear from the oral arguments and admissions of fact made by counsel in the course of argument that the Industrial Commission insists that there must be a prior determination as to whether certain employes will be engaged in nonmaritime employment. And it equally appears that it is impossible to make this determination in advance.

If the commissioners in fact receive the premiums tendered, no harm will be done by the judgment which has been entered, but, if they should continue to refuse to receive the premiums tendered, as they say in their answer they have done heretofore, it will become necessary to bring another suit to get the relief which this court has unanimously declared the relator to be entitled to.

Inasmuch as it clearly appears by the allegations of the answer that the defendant has not received, or even expressed a willingness to receive, all premiums, the judgment should be in favor of the relator, in order that the costs may be adjudged against the- defendant.

Allen, J., concurs in the dissenting opinion.  