Brown v. Ætna Casualty & Surety Co.

• Decision Date: 04 December 1940
• Docket Number: No. 2324-7539.,2324-7539.
• Citation: 145 S.W.2d 171
• Parties: BROWN v. ÆTNA CASUALTY & SURETY CO. et al.
• Court: Texas Supreme Court

Page 171

145 S.W.2d 171

BROWN v. ÆTNA CASUALTY & SURETY CO. et al.

No. 2324-7539.

Commission of Appeals of Texas, Section A.

December 4, 1940.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit under the Workmen's Compensation Act by Pearl Brown against the Ætna Casualty & Surety Company and others to set aside an award of the Industrial Accident Board. Judgment dismissing the suit for want of jurisdiction was affirmed by the Court of Civil Appeals, 122 S.W.2d 261, and the plaintiff brings error.

Judgments reversed and cause remanded to trial court, with instructions.

Morris Pepper, J. A. Collier, and James A. Copeland, all of Houston, for plaintiff in error.

Burris & Benton, of Houston, for Jones & Brown.

Bracewell & Spiner, of Houston, for Robinson.

Fulbright, Crooker & Freeman, Paul Strong, and Lester Settegast, all of Houston, for Ætna Casualty Co.

HICKMAN, Commissioner.

This suit was filed in the trial court in the form of an appeal by the compensation insurance carrier, Ætna Casualty & Surety Company, from an order of the Industrial Accident Board awarding plaintiff in error, Pearl Brown, compensation for the death of Adolphus Brown, her husband, and the controlling question here is whether or not the case is cognizable exclusively by a court of admiralty of the United States. The case was submitted to a jury upon special issues, all of which were answered in accordance with the contentions of plaintiff in error. It was stipulated by the parties before the evidence was introduced that the question of jurisdiction might be taken up and decided along with the merits of the case. The case thereupon proceeded to trial on its merits, and after verdict was returned the surety company filed its motion to dismiss the cause and set aside the award of the Industrial Accident Board on the ground that any claim for Adolphus Brown's death came "under the exclusive jurisdiction of the Courts of the United States or of the state courts applying only the admiralty or common law, and precluding the application of the Workmen's Compensation Act of the State of Texas to such claim." Subject to the foregoing it filed a motion for judgment in its favor non obstante veredicto. Subject to both of the foregoing motions it filed its motion that the court disregard the jury's findings in answer to certain named special issues and enter judgment, after disregarding such findings, in its favor. Upon hearing of the motion to dismiss for want of jurisdiction same was granted and the cause was dismissed. The other motions were therefore not reached. The trial court's judgment was affirmed by the Court of Civil Appeals. 122 S.W.2d 261, 263.

The facts material to the question under review are few. Adolphus Brown was employed by Shippers Compress Company. He was used as a utility man to do anything he was called upon to do about the compress. The president of the compress company owned a yacht, "Sarnette," sixteen tons gross, eleven tons net, forty-six feet long, and twelve feet wide which drew four feet and five inches of water. It was licensed by the United States Government to proceed from port to port of the United States and was used to go out into the Gulf during the summer months. While the yacht was owned by the president of the compress company, it was used largely to entertain customers and prospective customers of the company. The company paid a part at least of the operating expenses thereof. In September, 1935, the yacht was brought up Buffalo Bayou and tied up for the winter at the compress company's docks on the bayou. In December thereafter there occurred an unprecedented flood in Houston. We take the following statement from the opinion of the Court of Civil Appeals, which was copied from one of the briefs filed in that court: "* * * The swift water caused the boat's lines to chafe and cut in two, and the boat broke loose on Sunday morning (December 8, 1935). It started down the bayou, but men from the compress jumped in their cars and went down to the `Saap' bridge and caught the boat as it came under the bridge, which was about one-fourth of a mile from the Shippers Compress. The boat was tied downstream from the bridge by two lines on shore to telephone posts, one line to a tree and one line to the bridge, all of which were fixed to the bow of the boat. The lines were so attached and arranged as to permit the boat to be moved and its position maintained in the middle of the bayou. There was a small line on the boat that could be tightened to pull it away from the bank. They intended to leave the boat tied to the bridge until the water went down, when it was to be brought back to the docks. On Monday, December 9, 1935, at about 5:00 or 5:30 o'clock P. M., Thomas Stewart took Charlie Chandler and Adolphus Brown, the deceased, down to where the boat was tied at the `Saap' bridge. Mr. Armstrong, the boss, had given Charlie and Adolphus orders to go down and watch the boat. According to Stewart, the deceased had been a utility man at the compress, and apparently had not worked on this boat before. He principally loaded cotton on drays. Adolphus Brown, the deceased, was to stay on the boat and Charlie on the land, and they were to manipulate the lines to keep the boat out in the middle, or channel, so that it would not ground when the tide went out or the water went down. When they went there at 5:00 o'clock, Adolphus, as was his duty, got on the boat and Charlie stayed on shore. One of them had to be on shore, and the other had to be on the boat. About 1:00 o'clock that night the accident happened. The tide went out and the boat grounded. Adolphus was on the boat. He said `We have got to let slack on the rope to get it off the land.' Charlie loosened the lines. Adolphus was to hold the boat by a rope and keep it from going too far in the channel. He was to manipulate the lines from the boat. The boat straightened out in the channel and that was the last that Charlie saw of Adolphus. They searched for him. His body was found in May, 1936."

The question presented appears to have been settled contrary to the holding of the courts below. In a copius note in 25 A.L.R. the rule is deduced from the authorities at page 1035 that: "Where the injured person was employed under a non-maritime contract, state compensation acts, whether compulsory or elective, have been held applicable, whether the injury occurred on land, or on water within admiralty jurisdiction."

In a further annotation of the subject in 56 A.L.R., at page 356, that rule is reaffirmed. In 1 Am.Jur., Admiralty, Sec. 50, p. 576, the rule is stated in this language: "State statutes providing compensation for employees through commissions may be treated as amending or...