Belk v. Massman Const. Co.

• Decision Date: 24 September 1937
• Docket Number: 30011.
• Citation: 275 N.W. 76,133 Neb. 303
• Parties: BELK v. MASSMAN CONST. CO.
• Court: Nebraska Supreme Court

275 N.W. 76

133 Neb. 303

BELK v. MASSMAN CONST. CO.

No. 30011.

Supreme Court of Nebraska.

September 24, 1937

Syllabus by the Court.

1. The fact that a tort occurs in navigable waters does not necessarily make it maritime in character and of exclusive admiralty jurisdiction.

2. Where the circumstances out of which a tort arises are nonmaritime in character or of purely local concern, a local statute regulating liability may abrogate a remedy in admiralty which otherwise might exist.

3. " Where employment pertains to local matters having only incidental or indirect relation to commerce and navigation local regulations of employer-employee relationship works no prejudice to general laws of navigation and commerce, and state can prescribe exclusive remedy to compensate such employee for injury sustained in such employment." Woods v. Merrill-Stevens Dry Dock & Repair Co (D.C.) 14 F.Supp. 208.

4. Under the facts in this case, the Nebraska workmen's compensation law (Comp.St.1929, § 48-101 et seq., as amended), and not the seamen's act (41 U.S.St. at Large, ch. 250, § 33, p. 1007 [46 U.S.C.A. § 688]), held to provide the exclusive remedy for injuries sustained by employee.

Appeal from District Court, Otoe County; Yeager, Judge.

Action in admiralty by Carl F. Belk against the Massman Construction Company. Judgment for the defendant on a directed verdict, and the plaintiff appeals.

Affirmed.

Frank A. Dutton, of Omaha, Albert D. Menefee, of St. Louis, Mo., and Sanden & Anderson, of Lincoln, for appellant.

Thomas E. Dunbar, of Nebraska City, and Martin J. O'Donnell, of Kansas City, Mo., for appellee.

Heard before GOSS, C. J., and GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and LIGHTNER, District Judge.

CARTER, Justice.

Plaintiff commenced this action in admiralty for damages under the seamen's act (41 U.S.St. at Large, c. 250, § 33, p. 1007 [46 U.S.C.A. § 688]), for personal injuries sustained while employed as a seaman by the defendant, Massman Construction Company. At the close of plaintiff's evidence, the trial court directed a verdict against the plaintiff and dismissed his petition. From the overruling of his motion for a new trial, plaintiff appeals.

The defendant was engaged in improvement work on the Missouri river in Otoe county. The work necessitated the driving of piling along the bank and out into the river itself. Plaintiff was first employed by defendant to fire a pile-driver boiler on the bank, and, after the completion of that work, was again employed to fire a piledriver boiler on pile-driver barge No. 3, which was working in the river immediately east of its west bank. While working on this barge in the early morning of November 23, 1934, plaintiff was injured by getting his foot and leg caught in a revolving cable drum. This action was commenced under the seamen's act on the theory that plaintiff was a seaman engaged in navigation and commerce on a navigable stream within the provisions of the act at the time of his injury.

The record discloses that plaintiff contracted in writing to be bound by the workmen's compensation law of the state of Nebraska (Comp.St.1929, § 48-101 et seq., as amended). Plaintiff resided in Nebraska and was working in Nebraska at the time he was injured. It is clear therefore that, unless the facts bring the case within the exclusive jurisdiction of maritime law, the rights of the parties must be determined in accordance with the workmen's compensation law of this state.

The record discloses that plaintiff lived at Dunbar, Nebraska, and that he went home after each day's work. The barge, upon which he was working at the time he was injured, was always towed and had no motive power of its own. It was either anchored in the stream or tied to the piling already driven while the work was being performed. The principal duty of plaintiff was to fire the boiler of a stationary engine attached to the floor of the barge. The detailed statement of his other duties is not very satisfactory. We do not doubt that the accident in question was maritime in nature, at least it occurred on a navigable river. In determining whether, under the facts in this case, the compensation law of Nebraska provides the exclusive remedy, we must bear in mind that the supreme court of the United States has plenary and final jurisdiction over matters maritime. Necessarily we must look to the decisions of that court for the governing rules.

The general rule is that any work performed by workmen upon navigable waters, no matter what its character may be, is essentially maritime in its nature and controlled by the principles of admiralty.

There is a recognized exception to this general rule which materially affects its application. It has been held that, where the employment, although maritime in its character, pertains to local matters having no direct relation to navigation and commerce, the maritime law can be modified or supplemented by state statutes, since the regulation " will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations." Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 90, 66 L.Ed. 210.

In the case of Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 158, 66 L.Ed. 321, 25 A.L.R. 1008, the court said:

" In Western Fuel Co. v. Garcia, [supra], we recently pointed out that as to certain local matters regulation of which would work no material prejudice to the general maritime law, the rules of the latter might be modified or supplemented by state statutes. The present case is controlled by that principle. The statute of the State applies and defines the rights and liabilities of the parties. The employee may assert his claim against the Industrial Accident Fund to which both he and the employer have contributed as provided by the statute, but he cannot recover damages in an admiralty court.

This conclusion accords with Southern Pacific Co. v Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 L.R.A.1918C, 451, Ann.Cas.1917E, 900; Chelentis...