Nelson v. London Guarantee & Accident Co.

NOURSE, J.

This is an appeal from a judgment in favor of defendant after an order' of the trial court sustaining its demurrer to plaintiff’s complaint without leave to amend.

The allegations of the complaint are that on the twelfth day of May, 1914, plaintiff’s husband, during the course of his employment as a stevedore for the Matson Navigation Company, was killed while loading a vessel of that company in the port of San Francisco; that his average weekly wage at that time was twenty dollars, and that plaintiff was his sole dependent. It is also alleged that prior to that time the defendant had entered into an agreement with the Mat-son Navigation Company, -promising to pay to the dependents of employees of that company all sums of money due under the “Workmen’s Compensation, Insurance and Safety Act’’ arising out of personal injuries, including death, sustained by such employees in the course of their employment. That for a period of twenty weeks subsequent to May 12, 1914, defendant paid to plaintiff the sum of thirteen dollars a week, or a total of $260, and that on the thirtieth day of September, 1914, plaintiff and defendant entered into an agreement in writing respecting the further payment of compensation to plaintiff and adjusting the amount and manner of payment thereof. That such agreement provided in part as follows: “The payment of $13 each week in accordance with Workmen’s Compensation, Insurance and Safety Act, Laws of 1913, will be made so long

[445]

as required by said act.” That said agreement was approved by the Industrial Accident Commission of the state of California, and for a period of 139 weeks subsequent to the thirtieth day of September, 1914, defendant paid to plaintiff $13 per week, or a total sum of $1,807, and that on the twenty-ninth day of May, 1917, defendant notified plaintiff that it had abandoned and repudiated said agreement and that no further payments would be made thereunder. It is then alleged that the sum of $1,053 is still due under the agreement by reason of the terms of the “Workmen’s Compensation, Insurance and Safety Act,” which called for the payment of three times the average annual earnings of the defendant, and demand was made for judgment in that amount.

[1]

Respondent justifies its repudiation of the agreement upon the ground that subsequent to its execution the supreme court of the United States ruled that the Industrial Accident Commission of the state had no jurisdiction over accidents occurring upon vessels .engaged in interstate commerce in navigable waters.