45 F.2d 66 (5th Cir. 1930), 5802, Crowell v. Benson

Docket Nº:5802.
Citation:45 F.2d 66
Party Name:CROWELL, Deputy Com'r, et al. v. BENSON.
Case Date:November 17, 1930
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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45 F.2d 66 (5th Cir. 1930)

CROWELL, Deputy Com'r, et al.

v.

BENSON.

No. 5802.

United States Court of Appeals, Fifth Circuit.

November 17, 1930

Alexander C. Birch, U.S. Atty., Palmer Pillans, and Alexis T. Gresham, all of Mobile, Ala. (Alex C. Birch, U.S. Atty., and Pillans, Cowley & Gresham, all of Mobile, Ala., on the brief), for appellants.

Wm. G. Caffey and Vincent F. Kilborn, both of Mobile, Ala. (Outlaw, Kilborn Seale and Harry T. Smith & Caffey, all of Mobile, Ala., on the brief), for appellee.

Before FOSTER and WALKER, Circuit Judges, and HOLMES, District Judge.

WALKER, Circuit Judge.

On July 4, 1927, J. B. Knudsen, one of the appellants (herein referred to as the claimant), sustained personal injuries while on a derrick barge which was owned by Charles Benson, the appellee, and was then moored in the Mobile river, a navigable stream, the claimant then being on the barge for the purpose of splicing a wire cable which was part of its equipment. The claimant filed against the appellee a claim for compensation for those inquiries under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 USCA§ 901, et seq. In that proceeding the appellee put in issue allegations of the claimant, including the allegation that at the time the alleged injuries were sustained the claimant was an employee of appellee. After a hearing on that claim before a Deputy Commissioner under the act mentioned, one of the appellants, at which evidence was presented by the claimant and appellee, that official made an

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order awarding compensation to the claimant. That order, in the caption of which Knudsen was styled 'Claimant' and appellee was styled 'Employer,' contained what was called 'Findings of *********** included the statement: statement: 'That on the 4th day of July, 1927, the claimant above named was in the employ of the employer above named in Mobile, Alabama. ' Other than that statement it contained nothing as to the facts of any relationship existing between the claimant and the appellee at the time the former was injured. Thereafter appellee filed in the court, below what was called a 'bill of complaint' against the appellants. That pleading, after alleging the proceedings under the claim filed by the claimant and the making of the above-mentioned order, alleged 'that the said award and compensation order was not in accordance with law, for the reason that said J. B. Knudsen was not at the time of said injury an employee of the complainant, nor was the matter of his claim against this complainant within the jurisdiction of the said Deputy Commissioner. ' That pleading contained further allegations to the effect that prior to the date of the alleged injury, and after the derrick barge had been loaned by the appellee to the claimant and/or one Beauregard Roberts, and while it was used by one or both of them for purposes in which appellee was not concerned, the claimant wrongfully cut a cable thereon, and that at the time of the alleged injury the claimant was on board the barge for the purpose of splicing that cable as an act of reparation for the damage done by cutting it, but was not there as an employee or at the instance of appellee. That pleading prayed that the enforcement of that award be enjoined, and that it be set aside. After the overruling of motions of the appellants, 33 F. (3d) 137, that appellee's bill be dismissed, which motions stated the following, among other grounds: 'The facts alleged do not show that there was no competent evidence before the Deputy Commissioner to support his order sought to be enjoined,' and after the appellant had filed an answer to the bill, the court entered upon a trial de novo of the issues raised, heard evidence offered by the opposing parties, consisting of testimony of witnesses examined in the presence of the court, and rendered a final decree, which contained a finding to the effect that the claimant was not in the employ of the appellee at the time the former sustained the injuries mentioned, and adjudged that the above-mentioned award was not in accordance with law, and that that award be in all things set aside. That decree contained the recital that 'the respondent Crowell produced, offered and filed in evidence the record of the proceedings before him as Deputy Commissioner, but did not read same to the Court, nor did the court read it.'

It is not questioned, and is not fairly open to question, that...

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