SUWANNEE FRUIT & STEAMSHIP CO. v. Lawson

• Citation: 68 F. Supp. 616
• Decision Date: 11 October 1946
• Docket Number: Civil Action No. 954 J.
• Parties: SUWANNEE FRUIT & STEAMSHIP CO. et al. v. LAWSON, Deputy Commissioner.
• Court: U.S. District Court — Southern District of Florida

68 F. Supp. 616

SUWANNEE FRUIT & STEAMSHIP CO. et al. v. LAWSON, Deputy Commissioner.

Civil Action No. 954 J.

District Court, S. D. Florida, Jacksonville Division.

October 11, 1946.

Marks, Marks, Holt, Gray & Yates, of Jacksonville, Fla., for plaintiffs.

Herbert S. Phillips, Dist. Atty., of Tampa, Fla., and Edith House, Asst. Dist. Atty., of Jacksonville, Fla., for defendant.

STRUM, District Judge.

While in the employ of Suwannee Fruit & Steamship Company, John Davis suffered the accidental loss of his left eye under circumstances entitling him to compensation under the Longshoremen's and Harbor Workers' Compensation Act, § 8, 33 U.S.C.A. § 908. An award was made by the Deputy Commissioner, affirmed by this Court, awarding said employee compensation for permanent partial disability under sec. 8(f) of the Act, which award is now being paid in due course by said employer.

Prior to entering the employ of Suwannee, the employee had lost the sight of his right eye in circumstances not entitling him to compensation for that eye, and no compensation benefits have heretofore been paid him for the loss of the right eye. The Deputy Commissioner has now made an award for permanent total disability based upon the combined effect of the two injuries, which award the employer seeks to restrain as unauthorized.

As the employee is now industrially blind in both eyes, he is, under the Act, entitled to compensation for total permanent disability. The sole and narrow question here is whether the present employer, Suwannee, is liable for total permanent disability, or whether said employer is liable only for the maximum compensation for partial permanent disability, the remainder to be paid out of the special fund created by sec. 44 of the Act, 33 U.S.C.A. § 944.

Solution of the question depends upon a construction of sec. 8(f) of the Act, 33 U.S. C.A. § 908(f), which provides:

"Injury increasing disability:

"(1) If an employee receive an injury which of itself would only cause permanent partial disability but which, combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury: Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 944 of this chapter."

Following the only known case on the subject, National Hospital Association v. Britton, 79 U.S.App.D.C. 309, 147 F.2d 561, 562, the Deputy Commissioner held the plaintiff employer liable for total permanent disability, which is the holding of the majority in that case. With due deference thereto, this Court is unable to follow the interpretation of sec. 8(f) there adopted by the majority. This Court agrees with, and follows, the dissenting opinion of Judge Groner, which seems to clearly express not only the Congressional intent, but also the right and justice of the situation, without prejudice to the injured employee.

The above mentioned majority opinion concedes that when sec. 8(f) is read in the usual and ordinary meaning of its words, it indicates clearly enough that in the circumstances here involved, the employer in whose employ the subsequent injury occurred, is liable only for the...