General Accident, Fire & Life Assur. Corp. v. Crowell

Decision Date29 March 1935
Docket NumberNo. 7567.,7567.
PartiesGENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, Limited, et al. v. CROWELL, Deputy Com'r, et al.
CourtU.S. Court of Appeals — Fifth Circuit

Ed. Rightor and W. H. Sellers, both of New Orleans, La., for appellants.

John J. Conners and Rene A. Viosca, U. S. Atty., both of New Orleans, La., for appellees.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a judgment denying an injunction and affirming an award of compensation by a deputy commissioner, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act. Act March 4, 1927, 44 Stat. 1424 (33 USCA §§ 901-950). It is unnecessary to refer to the assignments of error in detail.

It is not disputed that the accident happened to a longshoreman on a vessel while he was employed in loading cargo at New Orleans, nor that the amount of compensation awarded, if due, is correct; but it is contended that the claimant, Anderson, was injured while indulging in horseplay, initiated by himself, over a matter that was not immediately connected with the work, and therefore he could not recover. Reliance also is had on section 3 (b) of the act (33 USCA § 903 (b), which provides: "No compensation shall be payable if the injury was occasioned solely * * * by the willful intention of the employee to injure or kill himself or another." It is further contended that the evidence before the commissioner does not sustain his finding that the injury to the claimant arose out of and in course of his employment.

The evidence before the deputy commissioner was in hopeless conflict, except as to the jurisdictional facts and that claimant broke his leg while working on the steamship Roland, as a longshoreman in the employ of T. Smith & Son, Inc., stevedores, for whom appellant was carrying insurance. Anderson, the claimant, testified that while stowing ground shrimp hulls in sacks in the mail room he stepped through a hole in the dunnage and fractured his leg. He denied emphatically that he had engaged in a scuffle or horseplay with any of his fellow employees. As against this a number of witnesses testified that Anderson engaged in a scuffle with another longshoreman, Grey, about his cotton hook, in the course of which both fell to the deck; Grey falling on top of Anderson and breaking his leg. As to this occurrence some of the witnesses testified that nothing was said about the cotton hook in the course of the encounter. Others testified that Anderson asked Grey where his hook was, and Grey said, "It is over there," pointing to a place, to which Anderson replied, "You are a damn liar. You have hidden my hook," and then grabbed Grey around the waist. Grey's testimony is perhaps the most material. He testified, in substance, that he (Grey) had moved Anderson's hook but it was hanging in the corner by the door; that Anderson said to him, "Where is my hook?" That he replied, "It is hanging up there," but did not point to it; that Anderson then grabbed him and started the tussle, in the course of which he slipped and Grey fell upon him, breaking his leg. He did not testify that Anderson said anything else to him.

The testimony tends to show that a cotton hook is a part of the usual equipment of a longshoreman, which he owns and carries with him at all times, and is used for handling cotton and other freight but was not needed for the stowing of the shrimp hulls in sacks, which were very light.

The finding of the deputy commissioner, so far as pertinent, was this: "Said employment was the stowing of shrimp hulls, handling cotton and handling sacks; on said March 25th, 1931, claimant and said Daniel Grey were waiting for the freight when claimant asked Daniel...

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