Eikel v. Voris

• Decision Date: 31 August 1951
• Docket Number: Civ. A. No. 5889.
• Citation: Eikel v. Voris, 101 F.Supp. 963 (S.D. Tex. 1951)
• Parties: EIKEL et al. v. VORIS et al.
• Court: U.S. District Court — Southern District of Texas

101 F. Supp. 963

EIKEL et al. v. VORIS et al.

Civ. A. No. 5889.

United States District Court S. D. Texas, Houston Division.

August 31, 1951.

Royston & Rayzor and E. D. Vickery, of Houston, Tex., for plaintiff.

Brian S. Odem, U. S. Atty., and W. G. Winters, Jr., Asst. U. S. Atty., of Houston, Tex., for defendant.

CONNALLY, District Judge.

This action is one by the employer and insurance carrier to enjoin enforcement of an award of compensation under the Longshoremen's and Harbor Workers' Act, Title 33 U.S.C.A. § 901 et seq., entered by the defendant Deputy Commissioner on November 29, 1950, and supplemented and amended by an order of the Deputy Commissioner on March 14, 1951.

The plaintiff Southern Stevedoring & Contracting Co. is a partnership of Charles Eikel and B. D. Harris, who as contract stevedores in December, 1949 were unloading the SS Southern States at Texas City, Texas. The defendant claimant, Earl Porter, had been in the employ of the Stevedoring Company, and in fact had followed this line of work, for only two days prior to his injury of December 19, 1949. He was injured while he and other workers were escaping from a hold of the vessel after a "flash fire" had occurred.

The written notice of injury within the thirty-day period, as required by Sec. 912(a)(b) of Title 33, U.S.C.A., was not given either to the employer or to the Deputy Commissioner. Neither had actual knowledge until some six months after the date of the accident. The first question presented is whether the finding of the defendant Deputy Commissioner, to the effect that the failure to give such notice was excusable under the terms of 912(d), is supported by reliable, probative and substantial evidence, as required by the Administrative Procedures Act, Title 5 U.S.C.A. § 1001 et seq.

In his findings of November 29, 1950, the Deputy Commissioner found "that the requirements of the Longshoremen's and Harbor Workers' Compensation Act as to the notice of injury was complied with by claimant". After an appeal from this award to this Court by the employer and insurance carrier, the matter was referred back to the Deputy Commissioner by Chief Judge Kennerly for further hearing, findings, and conclusions on this question of notice. Without holding further hearings, the Deputy Commissioner entered the order of March 14, 1951, from which this appeal is taken. In such order, the Deputy Commissioner found that written notice was not given within thirty days as provided by Sec. 12(b), but that the agent of the employer in charge of the business in the place where the injury occurred had knowledge of the injury, and that the employer had not been prejudiced by failure to give written notice; and further found that the failure was excused under Section 12(d)(2) for the reason that the claimant was illiterate, was not a regular longshoreman and was not acquainted with the requirements of the Act; he was not given instructions as to whom he should report his injury, and that he had reported same to his immediate foreman.

I have examined carefully the record of all the evidence heard by the Deputy Commissioner, and in my opinion the evidence does not support these findings nor bring the case within the terms of either of the alternative provisions of Sec. 912(d) which would excuse written notice.

The first alternative provision of Sec. 912(d) excuses the giving of written notice "if the employer (or his agent in charge of the business in the place where the injury occurred) or the carrier had knowledge of the injury * * *". There is little conflict in the evidence as to notice. It is clear that a number of the members of the gang of longshoremen with whom the claimant was working knew of his injury immediately (Moore, Rice, etc.). The foreman of claimant's gang (Lovely) knew of the injury, as did the "sub-walking foreman" (Wisby), who was in charge of two longshore gangs, but who in turn was under the "walking foreman" whose name does not appear. There is a dispute as to whether the timekeeper (Tarpey) had notice of the injury. Wisby testified that he had reported the accident to the timekeeper. The timekeeper denied that he had received such report or had any knowledge that an accident had occurred. While the testimony of Wisby would probably be sufficient to support the Deputy Commissioner's findings that Tarpey had notice if this were material, I do not think that it is. The statute requires notice to the employer or "his agent in charge of the business in the place where the injury occurred". The employer here was B. D. Harris, one of the partners of the firm, who was present during part of the time that the work was in progress. The agent in charge of the business of unloading the vessel, in the absence of Mr. Harris, was A. T. David who was present during Mr. Harris' absence and who was on board the vessel at the time of the accident and until the work was completed. There is no testimony whatsoever that either of these parties had any notice or knowledge of the injury. Each of them has testified that he had no such knowledge, although each made inquiry after the fire.

There is likewise clear testimony that the insurance carrier had no notice of the injury, and no proof to the contrary. Counsel for the defendant argues correctly that the statute should be liberally...