Emmons v. Pacific Indemnity Co.

• Decision Date: 04 February 1948
• Docket Number: No. A-1363.,A-1363.
• Citation: 208 S.W.2d 884
• Parties: EMMONS v. PACIFIC INDEMNITY CO.
• Court: Texas Supreme Court

208 S.W.2d 884

EMMONS v. PACIFIC INDEMNITY CO.

No. A-1363.

Supreme Court of Texas.

February 4, 1948.

Rehearing Denied March 24, 1948.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

In Admiralty. Suit under the Workmen's Compensation Act by Jesse V. Emmons against the Pacific Indemnity Company to set aside an award of the Industrial Accident Board for injuries sustained by the plaintiff while employed by the Levingston Shipbuilding Company. From a judgment of the district court sustaining defendant's plea to the jurisdiction, and dismissing the suit, the plaintiff appealed to the Court of Civil Appeals. The Court of Civil Appeals, 203 S.W.2d 342, affirmed the district court's judgment, and the plaintiff brings error.

Judgments reversed and cause remanded to district court for trial on the merits.

Joe J. Fisher and Joe H. Tonahill, both of Jasper, Looney & Clark and R. Dean Moorhead, all of Austin, for petitioner.

Strong, Moore & Nelson and Louis Nelson, all of Beaumont, for respondent.

SHARP, Justice.

Petitioner filed this suit in the district court, to set aside an award of the Industrial Accident Board, alleging that he had sustained injuries on or about March 27, 1946, while in the course of his employment with the Levingston Shipbuilding Company, at Orange, Texas, and that he was entitled to recover benefits under the Workmen's Compensation Act of Texas. Vernon's Ann.Civ.St. art. 8306 et seq. Respondent filed its plea in abatement under oath, contending that the trial court had no jurisdiction, because petitioner's injury was of a maritime nature, exclusively within the jurisdiction of admiralty, and that the Texas Workmen's Compensation Act was not applicable. On February 13, 1947, the trial court sustained respondent's plea in abatement and dismissed the suit. On appeal the court of civil appeals affirmed the order of the trial court. 203 S.W.2d 342.

Petitioner contends that at the time he was injured he was performing a nonmaritime service, and that he is entitled to recover benefits under the Workmen's Compensation Act of Texas. Respondent, on the other hand, contends that petitioner was injured while engaged in a maritime service, exclusively within the jurisdiction of admiralty. The trial court and the court of civil appeals sustained respondent's contention.

The evidence shows that petitioner was employed as a chipper by the Levingston Shipbuilding Company; that a chipper is one who goes ahead of a welder in the construction or repair of a ship and cuts and beats out steel to be put on a vessel; that shipbuilding was the principal purpose for which the shipbuilding company hired its employees, and petitioner was principally hired for that purpose; that the shipbuilding company used the same employees for repair work and for conversion that it did for new construction; that petitioner worked on jobs in accordance with the instructions from his foreman; that at the time of his injury he was chipping on a deckhouse of an old barge, which had been designated by the shipbuilding company as "Hull No. 236," and while thus engaged he fell from a scaffold to the bottom of the barge; that he was engaged in helping build a deckhouse in reconverting the barge into a fuel barge; that this barge or hull, along with other hulls, was anchored in the Sabine River, which river is admittedly a navigable stream; that the only use of the hull at the time of the alleged accident was that it and other hulls formed a series, the first of which was tied to the pier, and were used as "floating docks," and there is no showing that the hulls as so used were ever moved from place to place; that planks had been laid across the tops of the hulls, which enabled workmen to walk across same to vessels anchored in the deeper parts of the Sabine River; that Hull No. 236 could be towed in navigation and was capable of carrying cargo, but it was not shown that it had been used in navigation prior to the time of the alleged accident, nor was it shown that it had ever been commissioned or licensed for such use; that it had been launched in 1943, and it was not until after petitioner's injury that it was subsequently leased to an oil company and placed in use for the transportation of oil.

It is alleged in petitioner's petition that his employer was a subscriber under the Workmen's Compensation Act; and it is shown by the evidence that this was true, and that respondent was the insurance carrier of such employer. It is also shown that proceedings with respect to petitioner's injury had been taken under the Workmen's Compensation Act, rather than under the federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and that the employer is not shown to have taken any action under the Longshoremen's Act nor to have controverted payment in the manner prescribed in such act.

Frequently the line of demarcation as to whether an employee is engaged in a maritime or a nonmaritime service is not well defined. Congress and the various legislatures of the states have passed laws to protect employees who are engaged in these services. The acts of Congress and the acts of the various legislatures supplement one another, and it has been the purpose of Congress and the legislatures to leave no employee unprotected in what is called the twilight zone. In the construction of the various laws enacted, the decisions of the courts are not uniform. That the trend of decisions on this question has undergone a change is quite obvious.

In 1917 the Supreme Court of the United States, in 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, declared invalid a New York statute allowing compensation to employees working on a vessel engaged in interstate commerce, and held that any benefit arising from an injury sustained in such employment was controlled by the rule established by Congress. This left a perplexing problem to solve. Soon after the Jensen case, Congress, in order to help solve the problem, enacted 40 Stat. 395. This act was declared unconstitutional by a divided court. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145. In 1922 Congress enacted 42 Stat. 634, 28 U.S.C.A. §§ 41(3), 371(3), to permit State compensation laws to protect these water front employees, but this act was also held invalid. See State of Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646. In 1927 Congress enacted the Federal Longshoremen's and Harbor Workers' Act, 33 U.S.C.A. § 901 et seq. Congress clearly stated its purpose to uphold State compensation protection by making the federal law applicable only "if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law."

This Court is controlled in the construction of federal laws by the decisions of the Supreme Court of the United States. The case of Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 227, 87 L.Ed. 246, is a late decision of the Supreme Court of the United States construing the federal and state laws relating to this subject. In construing the federal laws in connection with state laws relating to injuries received by employees on the water fronts, in that case it was said:

"Harbor workers and longshoremen employed `in whole or in part, upon the navigable waters' are clearly protected by this Federal act; but, employees such as decedent here occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation. This Court has been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must `be determined in view of surrounding circumstances as cases arise.' Baizley Iron Works v. Span, 281 U.S. 222, 230, 50 S.Ct. 306, 307, 74 L.Ed. 819. The determination of particular cases, of which there have been a great many, has become extremely difficult. It is fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here.

"The very closeness of the cases cited above and others raising related points of interpretation has caused much serious confusion. It must be remembered that under the Jensen hypothesis, basic conditions are factual: Does the state law `interfere with the proper harmony and uniformity of' maritime law? Yet employees are asked to determine with certainty before bringing their actions that factual question over which courts regularly divide among themselves and within their own membership. As penalty for error, the injured individual may not only suffer serious financial loss through the delay and expense of litigation, but discover that his claim has been barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere. See e.g., Ayers v. Parker, D. C., 15 F.Supp. 447. Such a result defeats the purpose of the federal act, which seeks to give `to these hard-working men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation', and the state acts...