Cape Girardeau Sand Co. v. Unemployment Compensation Com'n

• Decision Date: 02 January 1945
• Docket Number: 39140
• Parties: Cape Girardeau Sand Company, Appellant, v. Unemployment Compensation Commission and Joseph C. Maevers
• Court: Missouri Supreme Court

184 S.W.2d 605

353 Mo. 828

Cape Girardeau Sand Company, Appellant, v. Unemployment Compensation Commission and Joseph C. Maevers

No. 39140

Supreme Court of Missouri

January 2, 1945

Appeal from Cape Girardeau Court of Common Pleas; Hon. J. Henry Caruthers, Judge.

Affirmed.

Rush H. Limbaugh for appellant.

(1) Agricultural labor and services performed by the members of the crew of a vessel on the navigable waters of the United States were exempt from the provisions of the act. Sec. 9423 (i) (6) (1) and (3), R.S. 1939. (2) These provisions are of the same nature as those found in the Longshoremen's and Harbor Workers' Act and the Social Security Act. 33 U.S.C.A. 902 (3); 42 U.S.C.A. 1011 (2) (5). (3) By such exempting provisions, Congress has sought to maintain harmony in legislation (Jones Act, 46 U.S.C.A. 688; General Shipping Act, 46 U.S.C.A. 713) and to protect the integrity of admiralty and maritime jurisdiction, which, under the Constitution of the United States, was vested exclusively in the Congress of the United States and the Federal Judiciary. Art. III, Sec. 2, U.S. Constitution; Continental Casualty Co. v. Lawson, 64 F.2d 802; United States Casualty Co. v. Taylor, 64 F.2d 521; Great Lakes Dredge & Dock Co. v. Brown, 47 F.2d 265; Merchants & Miners Transportation Co. v. Norton, 32 F.2d 513. (4) The jurisdiction of Congress to legislate over maritime activities is not yielded to the states, except by express Congressional enactment, and the exempting provisions of the Missouri Unemployment Compensation Law are not in accord with similar provisions of the Federal Social Security Act. 42 U.S.C.A. 1011 (5); Sec. 9423 (i) (6) (3), R.S. 1939; A.J Meyer & Co. v. Unemployment Comp. Comm., 162 S.W.2d 184. (5) Claimant's services were performed on "vessels" within the meaning of the law. 46 U.S.C.A. 713. (6) Claimant's services were performed on the waters of the Mississippi River which have been judicially determined to be navigable waters of the United States. Courts take judicial notice that large and well-known rivers or bodies of water that are regularly used for navigation purposes are "navigable waters." State of Arizona v. State of California, 283 U.S 423, 51 S.Ct. 522, 75 L.Ed. 1154; Mintzer v. North American Dredging Co., 242 F. 553; Harrison v Fite, 148 F. 781; McKinney v. Northcutt, 114 Mo.App. 146, 89 S.W. 351. (7) The Mississippi River is a navigable stream, and a vessel operating on it is "a vessel on the navigable waters of the United States." Hagerla v. Mississippi River Power Co., 200 F. 776; State v. Akers, 92 Kan. 169, 140 P. 637; State v. Muncie Pulp Co., 119 Tenn. 47, 104 S.W. 437. (8) Claimant was not occasionally on board a vessel performing acts merely incidental to navigation. Murphy v. Menke, 165 S.W.2d 653. (9) Claimant was a member of a crew of vessels regularly operating in navigation and performing services specifically exempt by the Act. 48 Am. Jur. 99, sec. 144; 46 U.S.C.A. 713; Murphy v. Menke, 165 S.W.2d 653; Pacific Employers' Ins. Co. v. Pillsbury, 130 F.2d 21; A. L. Mechling Barge Line v. Bassett, 119 F.2d 995; Maryland Casualty Co. v. Lawson, 94 F.2d 190; Gulf Oil Corp. v. McManigal, 49 F.Supp. 75; Malloy v. Great Lakes Dredge & Dock Co., 43 F.Supp. 885; The Buena Ventura, 243 F. 797; The Marie, 49 F. 286; The Arizona, 49 P.2d 3. (10) When claimant was not engaged in work on vessels in the river he performed agricultural labor and was exempt from the provisions of the law. Sec. 9423 (i) (6) (1), R.S. 1939. (11) Claimant should be held as a matter of law to have disqualified himself from receiving any benefits under the law because of his conduct in refusing to work without cause or excuse. Sec. 9431, R.S. 1939; S.S. Kresge Co. v. Unemployment Comp. Comm., 162 S.W.2d 838.

Edward D. Summers, Acting Chief Counsel, for respondents; George A. Rozier of counsel.

(1) Coverage of workers who perform services on navigable waters within the State of Missouri is not prohibited by any provisions of the United States Constitution. Standard Dredging Corp. v. Murphy; International Elevator Co. v. Murphy, 63 S.Ct. 1067. (2) The language, "members of the crew of a vessel," as given in Section 9423 (i) (6) (3), R.S. 1939, had acquired a technical meaning at the time it was incorporated into the exclusion provisions of the Unemployment Compensation Law. Sec. 9423 (i) (6) (3), R.S. 1939; 26 U.S.C.A., Sec. 1607 (4) and note, p. 407; Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086; Jones Act, 46 U.S.C.A., Sec. 688; Charles Nelson Co. v. Curtis, 1 F.2d 774; International Stevedoring Co. v. Haverty, 272 U.S. 50, 52, 47 S.Ct. 19, 71 L.Ed. 157; Chap. 216, 42 St. at L. 634, Comp. St. (1925) 991 (3), Federal St. Ann. Supp. 1922, p. 225; State of Washington v. W.C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646; Federal Longshoremen & Harbor Workers' Comp. Act, 33 U.S.C.A., Sec. 901 et seq.; 68 Congressional Record, 69th Congress, 2nd Sess., Part 5, p. 5908 (March 4, 1927); Nogueira v. New York, N.H. & H. Ry. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754; DeWald v. Baltimore & Ohio Ry. Co., 71 F.2d 810; Diomede v. Lowe, 87 F.2d 296; South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732. (3) Words and phrases having a technical meaning must be construed in accordance with such technical meaning. Sec. 655, R.S. 1939; Ex parte Bethurum, 66 Mo. 545; Rose v. Franklin Life Ins. Co., 153 Mo.App. 90, 132 S.W. 613. (4) A fireman on a non-self-propelled dredge, which is used to obtain sand from the bottom of the Mississippi River for commercial purposes, is not a member of the crew of a vessel on the navigable waters of the United States within the meaning of Section 9423 (i) (6) (3). Murphy v. Menke, 350 Mo. 145, 165 S.W.2d 653; Shore Fishery v. The Board of Review, 127 N.J.L. 87, 21 A.2d 634; Weber v. Unemployment Comp. Comm. of New Jersey, 32 A.2d 602, 35 A.2d 880; Commerce Clearing House, Unemployment Ins. Service (Ill.), pp. 16, 572; Puget Sound Bridge & Dredging Co. v. Oregon Unemployment Comp. Comm., 126 P.2d 37. (5) An unemployed individual who meets the eligibility requirements set out in the Unemployment Compensation Law can only be denied benefits to the extent authorized under the disqualification provisions prescribed by Section 9431 of the Unemployment Compensation Law. Secs. 9430, 9431 I (a), R.S. 1939.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This cause was commenced by appellant (employer) to review an award of unemployment compensation benefits to Joseph C. Maevers, claimant. The trial court affirmed the finding of the Commission and the employer appealed. Jurisdiction of the appeal is in the supreme court. See A. J. Meyer & Company v. Unemployment Compensation Commission, 348 Mo. 147, 152 S.W.2d 184; Trianon Hotel Co. et al. v. Kietel et al., 350 Mo. 1041, 169 S.W.2d 891.

Claimant was employed by appellant in 1939 and 1940. Appellant contends that claimant was not entitled to compensation benefits for two reasons: (1) Because the labor performed by claimant was as a "member of the crew of a vessel on the navigable waters of the United States", and by Sec. 9423 (i) (6) (3) R.S. 1939, is exempt from the unemployment compensation law prior to amendment in 1941, Laws 1941, p. 566; and (2) because claimant quit the employment of appellant voluntarily and without good cause and should be denied compensation benefits for that reason.

Was claimant a member of the crew of a vessel on the navigable waters of the United States? Appellant conducts a sand business at Cape Girardeau, Missouri. The sand is obtained from the Mississippi River. The equipment used in getting the sand from the river consists of a tow boat, and what may be termed a dredge barge, a carrying barge, and a derrick barge. The dredge barge has on it a steam boiler and engine and sand pumping equipment; the derrick barge has on it a derrick and also a steam boiler and engine. The work is carried on in this way, as we understand the record. The dredge barge and carrying barge are towed by the tow boat to whatever place in the river is desired. The derrick barge remains tied up at the shore where the sand is loaded onto cars or placed on the bank. The dredge barge equipment pumps the sand from the river, and the carrying barge, towed by the tow boat, carries the sand to the derrick barge at the bank.

Claimant, interrogated by the referee, testified: "Q. What kind of work did you do? A. Fired the dredge and derrick. Q. When you say that you mean --? A. Fired the dredge when loading sand and the derrick when unloading sand. Q. Just what do you mean by firing the dredge and derrick? A. Well, keeping the steam up. Q. You kept up stream? That is coal operated? A. Yes. Q. And you kept the boilers in sufficient steam to operate the dredge and derrick, is that correct? A. Yes, sir. . . . Q. How did you get out on the river? A. Well, they got a boat there (the tow boat). I don't know whether it was leased or hired or what. Q. Did you assist in the operation of that boat (the tow boat)? A. I have helped make up tow on it. Q. You mean by that that you handled lines to attach the tow to the barge? A. Yes, sir. Q. Did you work on the barge? A. Well, I did work on the barge part of the time unloading. Q. But you did work on the dredge itself, is that it? A. Yes, sir."

Interrogated by Mr. Limbaugh, counsel for the employer, claimant testified: "Q. Your work for the Sand Company consisted largely of your working connection with the sand boat on the river? A. Yes, most of the work was on the river. Q. Now, in addition to that, you did some work for them on the farm didn't you? A. That's right. Q. Do you know about how much work you did on the farm? A. No, I couldn't say. That is,...