Ex parte Rosengrant

• Decision Date: 21 May 1925
• Docket Number: 1 Div. 369
• Citation: 213 Ala. 202,104 So. 409
• Parties: Ex parte ROSENGRANT.
• Court: Alabama Supreme Court

104 So. 409

213 Ala. 202

Ex parte ROSENGRANT.

1 Div. 369

Supreme Court of Alabama

May 21, 1925

Certiorari to Circuit Court, Mobile County; Saffold Berney, Judge.

Petition of G.M. Rosengrant, doing business as the Riverside Manufacturing Company, for certiorari to the circuit court of Mobile county, to review judgment awarding compensation to Eva J. Havard under the Workmen's Compensation Act for the death of her husband, Fritz R. Havard, employee. Writ denied, and judgment affirmed.

See also, 211 Ala. 605, 100 So. 897.

Smiths Young, Leigh & Johnston, of Mobile, for appellant.

Outlaw & Kilborn, of Mobile, for appellee.

MILLER J.

This is a proceeding by Eva J. Havard, widow of Fritz R. Havard against G.M. Rosengrant, doing business as Riverside Manufacturing Company, to be awarded compensation for herself and their two minor children for the death of her husband, under the Workmen's Compensation Act. Gen.Acts 1919, pp. 206-239. There was judgment in the circuit court in favor of Eva J. Havard, plaintiff, and it is before this court on petition of defendant for writ of certiorari to review that judgment.

The petitioner, the defendant, insists the writ should be awarded and the judgment reversed because the tort which produced decedent's death was a maritime tort; the services which he was performing at the time of the accident were maritime in character, and his contract of employment with defendant was a maritime contract; and therefore admiralty had exclusive jurisdiction of the cause of action.

That question has been considered and passed on two or three times by this court on former application for writ of certiorari. Ex parte Havard, 211 Ala. 605, 100 So. 897. It was presented then on demurrers to the amended complaint. It appeared from the complaint as amended that the contract of decedent with defendant was to grade and tally lumber as it was removed from the barges on the Mobile river into the planing mill of the defendant on the bank of the river, and decedent, when injured, was standing on a schooner moored in this river, performing his duties under his employment, tallying and grading lumber, which was being unloaded from a barge into the mill. A tug boat was nearby waiting to remove the barge when the lumber in it was unloaded, and on this tug boat a negro, a member of its crew, was handling a pistol or rifle which accidentally exploded, the ball from it striking Fritz R. Havard in the head, wounding him so that he died in a few hours.

The facts alleged in the amended complaint fully appear in the former opinion, as reported in 211 Ala. 605. ^[1] This court on that hearing finally held the contract as presented by the amended complaint is not of a maritime nature, and the employé, the deceased, was only engaged in grading and tallying lumber, which may have been done as well upon the docks as upon the schooner, where he happened to be; and that "the locality of the injury is not the sole and exclusive test; the service to be performed must also be of a maritime nature"; and that the circuit court of the state had jurisdiction of the cause of action, and the Workmen's Compensation Act applied to it. Three of the justices did not concur in this holding of this court, as shown by the dissenting opinion 211 Ala. 605, 100 So. 897. No writ of error from it was prosecuted to the Supreme Court of the United States by the defendant.

It appeared, then, from the facts presented by the amended complaint, that the contract of decedent with defendant was only to grade and tally lumber as it was removed from barges in the Mobile river to the planing mill of the defendant on the bank of the river.

A different question is presented now under the facts found. It appears now from the facts found by the trial court, which are fully sustained and supported by the evidence, that:

"At the time of his death on August 24, 1922, the plaintiff's husband, Fritz R. Havard, was regularly in the employ of the decedent in the defendant's said business in the capacity of lumber inspector, checker, and grader. He was required to inspect, check, and tally lumber, which included the checking, grading, and tallying of lumber from barges from railroad cars and in the yards of the defendant, in the woods and at mills. He was also required to perform the duties of assistant shipping clerk. In the course of his said employment, and on August 24, 1922, he was directed by the manager of defendant's plant to check or grade some lumber which was on a barge tied to the wharf at defendant's plant. This barge was afloat in Mobile river, which is a navigable stream, and to her outer or river side a laden schooner, the 'Corinthia,' of British or Honduran registry, was tied or lashed. *** The lumber which Mr. Havard was checking when shot was not on the schooner but on the barge, which, as before stated, was tied between the schooner and the wharf. The operation of checking involves getting the lengths and sizes of the lumber, and sometimes getting the grades as well. Mr. Havard was not doing any of the physical labor of moving the lumber, and the service he was performing when shot could have been performed as well on the dock or wharf was on the barge or schooner. In the course of his said employment Mr. Havard was sitting on the schooner with a pencil in one hand and a book in the other, tallying the lumber off the barge, while some negroes were taking the lumber off of the barge and carrying or carting it from thence into the defendant's plant or mill. While Mr. Havard was thus engaged in the course of his employment by the defendant, he was suddenly shot through the head, and, as a proximate result, died almost instantly. The shooting was accidental and arose out of his employment. A negro engineer on a tug or tow boat was cleaning his gun or pistol when it accidentally exploded, and as a proximate result of the explosion Havard was killed. This tug or tow boat was afloat laying in a slip or cut adjoining the defendant's plant, and belonged to one Powell, who also owned the barge whereon the lumber was laden which Havard was checking. The tow boat was waiting in the slip or cut for the purpose of towing away the barge from which the lumber aforesaid was being carried into the defendant's plant or to tow away or move other barges from which lumber was to be or had been unloaded into said plant. The

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