Brown v. Ætna Casualty & Surety Co.

• Decision Date: 17 November 1938
• Docket Number: No. 10786.,10786.
• Parties: BROWN v. ÆTNA CASUALTY & SURETY CO. et al.
• Court: Texas Court of Appeals

122 S.W.2d 261

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

No. 10786.

Court of Civil Appeals of Texas. Galveston.

November 17, 1938.

Rehearing Denied December 15, 1938.

Error from District Court, Harris County; Allen B. Hannay, Judge.

Suit under the Workmen's Compensation Act by Pearl Brown and others against the Aetna Casualty & Surety Company and others to set aside an award of the Industrial Accident Board. To review a judgment dismissing the suit for want of jurisdiction, named plaintiff brings error.

Affirmed.

Morris Pepper and J. A. Collier, both of Houston (James A. Copeland, of Houston, of counsel), for plaintiff in error.

Fulbright, Crooker & Freeman, of Houston (Paul Strong, of Houston, of counsel), for defendant in error Aetna Casualty & Surety Co.

Bracewell & Spiner, of Houston, for intervener Sylvia Robinson.

GRAVES, Justice.

This appeal is from a judgment of the 113th District Court of Harris County dismissing for want of jurisdiction the suit of plaintiffs in error, Pearl Brown, Crawford Brown, Mary Jones, and Sylvia Robinson, for compensation, under the Texas Employers' Liability Act, Vernon's Ann.Civ.St. art. 8306 et seq., for the accidental death of Adolphus Brown, against the defendant in error Casualty Company, his employer's insurance-carrier, upon this stated finding of fact: "The evidence conclusively shows that Adolphus Brown came to his death while performing maritime service to the completed vessel, `Sarnette', which was capable of self-propulsion, and was afloat in navigable waters of the United States".

This holding was made after a verdict favorable to the plaintiff in error upon special issues had been returned by a jury in response to evidence from all parties, on the Casualty Company's motion, then presented, asserting that such facts brought the declared-upon claims under the exclusive jurisdiction of the United States courts in Admiralty, to the exclusion of the Texas compensation statute, so invoked.

Wherefore, the main if not the sole question presented here is whether or not the trial court erred in so determining the cause to be cognizable, if at all, by the United States courts of Admiralty only. After having had the benefit of able briefs and arguments from both sides, it is determined that the court below was correct, and that under the conclusive if not undisputed state of the evidence, the Admiralty jurisdiction of the Federal courts was shown to apply to the situation presented, rather than that of the State courts in administering its policy of compensation-insurance for industrial accidents, the material facts in substance being these:

"The boat was the yacht `Sarnette', which was of 16 tons gross, eleven tons net, licensed by the United States Government, to proceed from port to port of the United States; this yacht was 46 feet long, 12 feet wide, and drew 4 feet and 5 inches of water; the yacht was a seagoing boat, which was actually used to go out in the Gulf in the summer, and which had come up Buffalo Bayou to the Shippers Compress Company.

"Charlie Chandler worked at the Shippers Compress, along with Adolphus Brown, the deceased. Both were working at the compress on December 10, 1935, under the boss, Mr. Armstrong, who gave the orders. The Shippers Compress was on the north side of Buffalo Bayou just east of Hill Street and adjoining the bayou at the Hill Street bridge. This boat had been brought up the bayou in September, and tied up at the Shippers Compress docks on the bayou. They had the biggest flood in the history of Houston in December, 1935. 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."

"Appellant's witness, Thomas Stewart, admitted that Buffalo Bayou was navigable for this type of boat at the Shippers Compress, and that barges came up there. This admission is corroborated by the testimony of Raymond Reeves, captain of the `Sarnette', to the effect that it and vessels of like tonnage could navigate Buffalo Bayou. He also stated that a boat leaving Main Street in Houston, would go down Buffalo Bayou to get to Galveston, and in so doing would pass the Shippers Compress. Captain Crotty, the Assistant Port Director at Houston, testified without contradiction that Buffalo Bayou was of sufficient depth in December, 1935, to be navigated by barges to the M. & M. Building landing, which barges could go up full at high tide, or loaded to 6½ feet at low tide. He also testified that a boat could go down Buffalo Bayou to the Turning Basin through the main Ship Channel to Morgan's Point, across Galveston Bay to Bolivar Roads, and through the jetties to the Gulf. And further that the intracoastal canal was opened in 1934, running from the Mississippi at New Orleans to Galveston, through which cargo-ships and barges had come from the Mississippi into the Houston Ship Channel, and discharged both above and below the Turning Basin."

The plaintiff in error, as well as the intervenor in the trial court who makes common cause with her here, in inveighing against the adverse judgment, relies chiefly upon the former holding of this court in Southern Surety Co. v. Crawford, 274 S.W. 280, and Southern Surety Co. v. Stubbs, 199 S.W. 343, 346, certiorari in the former having been denied by the United States Supreme Court, as shown in 270 U.S. 655, 46 S.Ct. 353, 70 L.Ed. 783; but it seems apparent, when the facts controlling those two causes are compared with the stated ones here, that they are distinguishable from this, in that both of those causes grew out of the death of two deck-hands on the same nonself-propelling dredge, which was engaged in the improvement of a Texas inland harbor-channel; this court held that service to have been of such a local nature as not to affect the rules of the sea, and therefore not to have been exclusively within the Admiralty jurisdiction of the Federal Courts; plainly, however, that situation appears to have been a far cry from the one here reflected, considering the facts recited supra. Under them, that Buffalo Bayou at the place of...