Bowery v. Hartford Acc. & Indem. Co.
| Decision Date | 12 May 1947 |
| Docket Number | 39972 |
| Citation | 202 S.W.2d 790,356 Mo. 545 |
| Parties | J. F. Bowery v. Hartford Accident & Indemnity Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Denied June 9, 1947.
Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.
Reversed.
Henry Depping, Hale Houts and Hogsett, Trippe, Depping & Houts for appellant.
The Jones Act was not applicable to plaintiff's injury. Plaintiff was not a seaman under the Act. Belk v. Massman Construction Co., 133 Neb. 303, 275 N.W. 76; certiorari denied 303 U.S. 641; Millers' Indemnity Underwriters v. Braud, 270 U.S. 59; Andersen v. Olympian Dredging Co., 57 F.Supp. 827; South Chicago Coal & Dock Co v. Bassett, 309 U.S. 251; Moore Dry Dock Co. v. Pillsbury, 9 Cir., 100 F.2d 245; Sultan Railway & Timber Co. v. Department of Labor of State of Washington, 277 U.S. 135; Antus v. Interocean S.S. Co., 6 Cir., 108 F.2d 185; Hawn v. American S.S. Co., 2 Cir., 107 F.2d 999; Warner v. Goltra; 293 U.S. 155; 46 U.S.C.A., sec. 688; 33 U.S.C.A., secs. 901, 903.
C. W. Prince and Wm. Dennis Bush for respondent.
(1) In construction of a statute or any of its provisions, all acts prior or subsequent relating to same subject should be read in connection with it as constituting one law. State ex rel. Bank v. Davis, 284 S.W. 464, 314 Mo. 373; 59 C.J. 1042, sec. 620, p. 1050, note 45; 50 Am. Jur., secs. 265, 272; State ex rel. v. Brown, 105 S.W.2d 909, 340 Mo. 1189; Fiske v. Buder, 125 F.2d 841. (2) Workmen on vessel engaged in improvement of navigable river are seamen and "members of a crew," as they are pursuing work that has direct relation to navigation and commerce. Saylor v. Taylor, 77 F. 476; Woods Bros. Const. Co. v. Iowa Unemployment Comp. Comm., 229 Iowa 1171, 296 N.W. 345; Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600; Swanson v. Marra Bros., 66 S.Ct. 869; The Pioneer, 30 F. 206; The Alabama and the Two Scows, 22 F. 449; Hezekiah Baldwin, 8 Ben. 556, 12 Fed. Cases 6449; Pfister v. Bagdett Const. Co., 65 S.W.2d 137; Norton v. Warner, 321 U.S. 565, 64 S.Ct. 747; Swanson v. Marra Bros., 66 S.Ct. 869; Murphy v. Menke, 165 S.W.2d 653, 350 Mo. 185; Cape Girardeau Sand Co. v. Unemployment Comp. Comm., 184 S.W.2d 605; State of Wash. v. Dawson, 264 U.S. 219, 44 S.Ct. 302. (3) The work in which plaintiff was engaged having a direct relation to navigation, the exclusive remedy is under the federal law. Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88; State ex rel. v. Mo. Workmen's Comp. Comm., 81 S.W.2d 986; Sec. 3700, R.S. 1939; Employers' Liability Assur. Corp. v. Cook, 281 U.S. 233, 50 S.Ct. 308; John Baizley Iron Wks. v. Span, 281 U.S. 222, 50 S.Ct. 306; Pfister v. Bagdett Const. Co., 65 S.W.2d 137. (4) An award of compensation commission in an action covered by the Jones Act or Federal Employers' Liability Act is void. Gieseking v. Ry., 127 S.W.2d 700; Gieseking v. Ry., 94 S.W.2d 375; Restatement, Conflict of Law, sec. 401c, p. 489. (5) Defendant's cases are inapplicable. Swanson v. Marra Bros., 66 S.Ct. 869; Kibadeaux v. Standard Dredging Co., 81 F.2d 670, Certiorari denied, 299 U.S. 549, 57 S.Ct. 12; Baizley Iron Works v. Span, 281 U.S. 222, 50 S.Ct. 306; Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747; Cape Girardeau Sand Co. v. Unemployment Comm., 184 S.W.2d 605.
This is an action for fraud against the insurance carrier of plaintiff's employer.
In 1932 plaintiff was injured while working on a barge floating in the Missouri River. He claims that he had a cause of action against his employer under the Merchant Marine Act of June 5, 1920, commonly known as the Jones Act; that a claim adjuster of defendant insurance company made false and fraudulent representations to the effect that plaintiff had no remedy under the Jones Act but was limited to the Missouri Workmen's Compensation Act; that due to such representations, plaintiff accepted Workmen's Compensation payments, and did not discover the fraud until the statute of limitations had run against an action under the Jones Act. Plaintiff obtained a verdict for $ 12,000, and defendant has appealed.
A number of issues are raised by the appellant, but since we have come to the conclusion that the case must be reversed because plaintiff had no remedy under the Jones Act, not being a member of the crew of a vessel, it will be unnecessary to consider any other issues.
Plaintiff, a laborer, who lived in a nearby town, was employed by the day for six days a week to assist in the construction of a mat made of woven boards which was being constructed as part of the foundation of a dike used to assist in improving the channel of the Missouri River. The mat, which was 86 to 104 feet wide, was started on the bank and then was woven continuously out into the river from the bank. The weaving was done by plaintiff and others on a barge without motive power which was anchored out in the river by ropes attached to pilings driven into the river further upstream. Lashed to the barge in which plaintiff worked was another barge known as a lumber barge, which provided the material used in weaving the mat. Whenever a section of the mat about 15 feet long had been woven on the mat barge, the plaintiff and other men in the mat barge shoved against the mat so that the barge would be pushed out from under the mat, which was allowed to drop into the river, where subsequently it was weighted down with rock to form a foundation for the dike. Plaintiff had nothing to do with handling the ropes by which the barge was anchored or with the transportation of the barge to the locality at which it was anchored. His sole duty in connection with any movement of the barge was to push on the section of the mat which he had helped to construct. He had no duties with reference to keeping the barge in repair. Neither he nor anyone else lived on the barge, and he went home for the night at the end of the day's work. When the mat had been woven so that it extended out from the south bank to within about 100 feet of the north bank, plaintiff sustained an injury alleged to be due to the negligence of his employer, which resulted in a hernia requiring an operation. According to conflicting evidence, a young insurance claim adjuster, who was a law student attending evening classes and was employed by defendant during the day, made representations to the effect that plaintiff had no right to a jury trial for damages under the Jones Act but was limited to compensation under the Missouri Workmen's Compensation Act and that, relying upon such representations, plaintiff accepted his remedy under such act and did not discover the fraud until the statute of limitations had run against an action under the Jones Act.
There was also some evidence indicating that plaintiff should have been awarded more compensation under the Missouri Act, if applicable, than he actually received. Although plaintiff claimed permanent partial disability the Commission found only temporary disability.
The Jones Act, Section 688, Title 46, U.S.C.A. provides:
"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; . . ."
We will assume for the purposes of this opinion that the barge upon which plaintiff was working would be deemed a "vessel" within the meaning of the Jones Act.
Section 713, Title 46, U.S.C.A. defines a seaman as "every person (apprentices excepted) who shall be employed or engaged to serve in any capacity on board . . ." a vessel. Plaintiff contends that said Section 713 applies to Section 688, the Jones Act. Section 713 so states, but in Warner v. Goltra, 293 U.S. 155, it was held that this was a mistake of the compilers of the Code and that Section 713 applied only to the Act of June 7, 1872 dealing with merchant seamen and had no application to the Jones Act, reversing the opinion of this court to the contrary. Warner v. Goltra, 334 Mo. 396, 67 S.W.2d 47.
In International Stevedoring Company v. Haverty, 272 U.S. 50, decided in 1926, the term "seaman" in the Jones Act was given a very broad interpretation. A longshoreman in the employ of a stevedoring company, and who was engaged in stowing freight in the hold of a vessel tied up to a dock, was held to be a "seaman" within the meaning of the Jones Act. However, in 1927 the scope of the Jones Act was greatly limited by the Longshoreman's and Harbor-Workers' Compensation Act, Sections 901-950, Title 33 U.S.C.A. The effect of the Longshoremen's Act was to eliminate from the scope of the Jones Act all persons theretofore classed as "seamen" who were not either the master or a member of the crew. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251; Swanson v. Marra Bros., Inc., 328 U.S. 1.
The South Chicago Company case contains an extensive discussion of the history of the modification of the Jones Act through the Longshoremen's Act. The latter Act provides for state compensation if applicable under the State laws, but if there is no such compensation coverage then the Longshoremen's Act provides an exclusive remedy of workmen's compensation. The bill, as introduced in Congress, originally provided compensation for all persons working on or about vessels and would apparently have completely eliminated the Jones Act. However, the seamen's union preferred their rights under the Jones Act and obtained an amendment of the bill. At first this amendment was broad enough to exempt all seamen from the bill but in its final passage the words "a master or member of the crew" were substituted for "seamen," and they were...
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