Emmons v. Pacific Indemnity Co.

• Decision Date: 29 May 1947
• Docket Number: No. 4458.,4458.
• Citation: 203 S.W.2d 342
• Parties: EMMONS v. PACIFIC INDEMNITY CO.
• Court: Texas Court of Appeals

203 S.W.2d 342

EMMONS v. PACIFIC INDEMNITY CO.

No. 4458.

Court of Civil Appeals of Texas. Beaumont.

May 29, 1947.

Rehearing Denied June 18, 1947.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Suit under the Workmen's Compensation Act by Jessie V. Emmons against the Pacific Indemnity Company to set aside an award of the Industrial Accident Board. From a judgment sustaining a plea to the jurisdiction and dismissing the suit on the ground that injury occurred upon a navigable stream while plaintiff was engaged in maritime service and, therefore, was within exclusive jurisdiction of admiralty, plaintiff appeals.

Affirmed.

Fisher & Tonahill, of Jasper, for appellant.

Strong, Moore & Nelson, of Beaumont, for appellee.

COE, Chief Justice.

This is an appeal from a judgment sustaining a plea to the jurisdiction and dismissing a suit brought by appellant, Jessie V. Emmons, in the district court of Orange county, Texas, against appellee, Pacific Indemnity Company, under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. The plea to the jurisdiction was sustained on the theory that the evidence showed that if the plaintiff received an injury that the injury occurred upon a navigable stream while plaintiff was engaged in maritime service and, therefore, it was within the exclusive jurisdiction of admiralty.

Appellant brought this suit in the district court of Orange county, seeking a workman's compensation benefits under the Texas Workmen's Compensation Act for an injury alleged to have occurred on March 27, 1946, while appellant was an employee of Levingston Shipbuilding Company in Orange county, Texas. The appellee filed its plea to the jurisdiction, praying that the court dismiss the cause for lack of jurisdiction on the ground that if appellant sustained an injury that the injury was sustained while the appellant was engaged in reconstructing and repairing a barge which was a part of the work of the Levingston Shipbuilding Company, and which injury, if any, occurred on a navigable stream, to-wit, the Sabine river. Upon the conclusion of the evidence, on appellee's plea to the jurisdiction, the trial court sustained such plea and dismissed appellant's suit, from which judgment he has properly prosecuted this appeal.

The sole question presented for our decision is whether the alleged injury sustained by appellant on or about March 27, 1946, was of a maritime nature exclusively within the jurisdiction of admiralty. The evidence shows that the Levingston Shipbuilding Company was engaged in constructing ships, barges, tugs and other naval crafts, and in repairing and reconverting the same character of crafts; that appellant was employed as a chipper by said company, employed to do work as a chipper on any and all jobs of the Levingston Shipbuilding Company; that he worked on jobs in accordance with the instructions from his foreman; that on the particular night of his injury he was chipping on a deckhouse on a barge when the scaffold fell and he fell to the bottom of the barge; that the barge was located in the Sabine river at the time of the injury and that he was engaged in building a deckhouse in reconverting the barge into a fuel barge, and that the barge was an old barge having been launched in 1943, that at the point where the barge was anchored in the Sabine river such river was a navigable stream, that the barge upon which appellant was working at the time of his alleged injuries was capable of being towed in navigable waters and capable of being moved from place to place and capable of carrying cargo on navigable waters. At the time of appellant's alleged injuries, he was working on a job of converting said barge into a fuel transportation barge, that the work necessary was to install heating coils, pumping units and deck-house, that after the work on the barge had been completed, it went into service as a fuel barge for the Andrews Transportation Company of Houston.

Appellant contends that his employment as a chipper and the work being done by him at the time of his alleged injuries for the Levingston Shipbuilding Company of Orange county, Texas, are of local concern, falling within the jurisdiction of the district court of Orange county, and not exclusively maritime in nature and within the jurisdiction of admiralty. Appellant relies heavily upon the case of Davis v. Department of Labor & Industries of the State of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, in support of...