Colvin v. Kokusai Kisen Kabushiki Kaisha, 7254.

• Decision Date: 29 June 1934
• Docket Number: No. 7254.,7254.
• Citation: 72 F.2d 44
• Parties: COLVIN v. KOKUSAI KISEN KABUSHIKI KAISHA.
• Court: U.S. Court of Appeals — Fifth Circuit

72 F.2d 44 (1934)

COLVIN v. KOKUSAI KISEN KABUSHIKI KAISHA.

No. 7254.

Circuit Court of Appeals, Fifth Circuit.

June 29, 1934.

Brantly Harris, of Galveston, Tex., for appellants.

H. C. Hughes, of Galveston, Tex., and George C. Sprague, of New York City, for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Determining under section 933, title 33 USCA, that "some person other than the employer was liable in damages," Julia Colvin, individually and as next friend of her minor child, and also as administratrix of the estate of Eddie Colvin, deceased, gave the notice required by subdivision (f) to preserve her right to compensation for deficiencies in her recovery, and brought this suit against Kokusai Kisen Kabushiki Kaisha, owner of the ship France Maru, as third party.

The respondent interposed two defenses: (1) That the compensation coverage the stevedore loading the ship took out inured to its benefit so that within the meaning of the act it was Colvin's employer, and could not therefore be "some other person." (2) That, if it was a third party, the evidence failed to show it liable. The District Judge agreed with respondent on its second point, that the ship was not shown to be at fault. Without deciding the first point, he dismissed the libel, Here appellee, insisting that both of its defenses are good, argues them both vigorously.

We think it hardly debatable that the respondent was "some person other than the employer." The fact that the premium cost of the compensation coverage was included in the bill of costs the owner paid the stevedore is of no significance. What is significant is the answer to these questions: Did respondent employ Colvin, or was he employed by the stevedore? Did the stevedore in employing him act as an independent contractor, or as the servant or agent of the respondent? The evidence we think definitely answers both of these questions against appellee. It leaves no doubt that the Williamson Company, Colvin's employer, had been employed by respondent on a cost plus basis as an independent contractor, and that as such independent contractor and not as servant or agent of respondent, it had employed Colvin. Both appellant and appellee have cited and discussed decisions under state statutes. Except as the language of the state statutes construed is substantially the same as that used in the federal act, those decisions are of little aid here, for at last it is the governing statute which controls. Looking to the words of the act in the light of its general purpose, to make the compensation provided for, the exclusive measure of recovery as between employer and employee while preserving the common-law liability of all persons at fault other than the employer, we think it would do violence to the plain common sense meaning of the words used in the act to hold that respondent was Colvin's employer, and therefore not as to him "some person other than his employer." The Aden Maru (D. C.) 51 F.(2d) 599; Samuels v. Munson S. S. Line (C. C. A.) 63 F. 861; United States v. Boyd-Campbell Co. (C. C. A.) 72 F.(2d) 40. State cases in point construing similar statutes are Standard Accident Ins. Co. v. Pa. Car Co. (C. C. A.) 49 F.(2d) 73; McGrath v. Pa. Sugar Co., 282 Pa. 265, 127 A. 780; Machae v. Fellenz Coal & Dock Co., 183 Wis. 44, 197 N. W. 198; Trumbull Cliffs Furnace Co. v. Schackovsky, 27 Ohio App. 522, 161 N. E. 238; Artificial Ice & Cold Storage Co. v. Waltz, 86 Ind. App. 534, 146 N. E. 826; Cermak v. Milwaukee Air Power Pump Co., 192 Wis. 44, 211 N. W. 354; Boyd v. Humphreys, 117 Neb. 799, 223 N. W. 658.

While we agree with libelant that respondent must stand suit as a third party, we are unable to agree with her contention that the state of the evidence is such as to require the setting aside of the District Judge's finding and decree. There was a downright and definite issue of fact which the plaintiff had the burden of maintaining, that the injury was caused by a defective rope, and specifically, as charged by her, that it broke. Most of the witnesses, including all of libelant's, were heard orally, and there are no circumstances standing out in the case giving imperative direction to a decision of it contrary to that arrived at below. In this state of the record we cannot find that the District Judge has committed plain error. We are bound to say that, however this court, or any member of it, might have decided the case as a matter of first impression, as it stands before us now we can find no warrant for rejecting as unfounded, the view the District Judge took of it. A brief summary of the evidence as it was given below will point out the difficulties under which appellant was laboring, and make clear, we think, why we may not extricate her from them.

On September 1, 1932, Eddie Colvin, while employed as a longshoreman by R. P. Williamson & Co., an independent stevedoring contractor, in assisting to load cotton on the steamship France Maru, received injuries from which he died. This is the way the accident occurred: Longshoremen employed by the stevedoring company boarded the vessel at about 1 p. m. that day to load cotton. Colvin, the deceased, was the foreman of the starboard boom gang at No. 1 hatch. Both booms were used in the work; the port boom for the after part of the hatch, and the starboard boom rigged lower for the forward part. The height of the booms was fixed by the ship's crew at the direction of the stevedores. The starboard boom, with which we are here concerned, was so rigged as to lift a sling load of cotton from the dock on the port side of the vessel, drag it up on an inclined stage to the ship's deck, and then lower it into the forward part of No. 1 hold. To secure the boom in position with only sufficient play sideways to allow it to both lift from the dock and lower into the hatch, a wire called a "guy pennant" extended from a ring in the iron collar at the end of the boom to a guy block marked "B." Through this guy block a manila rope was reeved, the ends of which were to be fastened to deck projections, chocks and bitts, to hold the boom from swinging too far to starboard when the sling load was raised to the...