Gray v. New Orleans Dry Dock & Shipbuilding Co
| Decision Date | 02 February 1920 |
| Docket Number | 23150 |
| Citation | 146 La. 826,84 So. 109 |
| Parties | GRAY v. NEW ORLEANS DRY DOCK & SHIPBUILDING CO |
| Court | Louisiana Supreme Court |
Original Opinion of June 30, 1919, Reported at 146 La. 826.
OPINION On Rehearing.
O'NIELL J.
Defendant appeals from a judgment awarding plaintiff $ 15,000 damages for personal injuries, subject to a credit of $ 240 paid before the suit was filed. In answer to the appeal, plaintiff prays that the amount of the judgment be increased to $ 20,000.
He fell from a scaffold and was seriously injured while working in the employ of the defendant company as a carpenter on the dredgeboat Dixie, belonging to the board of commissioners of the port of New Orleans, and undergoing repairs in defendant's dry dock in the Mississippi river at New Orleans.
After the accident, the defendant through an indemnity company (by whom defendant was insured against employers' liability for such accidents) made weekly payments of compensation at $ 10 a week for 24 weeks, assuming that plaintiff was entitled to compensation under the Employers' Liability Act, the Act No. 20 of 1914 (page 44).
When plaintiff was well enough to get about, he called upon the president of the dry dock company, and asked whet effect his receiving the payments of compensation would have upon his legal right in the premises; and, having, called in the agent of the indemnity company, and in presence of the latter, the president of the dry dock company assured plaintiff that he was entitled to compensation at $ 10 a week during his disability to work, and that his acceptance of the payments would not be construed as a waiver or abandonment of any claim that he might have against the dry dock company. The president of the dry dock company and the agent of the indemnity company were then of the opinion that the case was governed by the Employers' Liability Act, and not by the general law of torts; and it appears that the only question in their mind was whether plaintiff was entitled to compensation for permanent total disability or only for temporary total disability. There was no doubt or dispute that plaintiff had suffered total disability. The president of the defendant company and the agent of the indemnity company, therefore, conceded that if plaintiff's disability was permanent, he was entitled to the $ 10 a week for 400 weeks; if only temporary, he was entitled to the $ 10 a week during the period of disability, not, however, beyond 300 weeks.
Thereafter, having indorsed and cashed 19 or 20 of the voucher checks of $ 10 each, plaintiff consulted an attorney, who at first was also of the opinion that the case was governed by the Employers' Liability Act, which, if applicable, would exclude any and all other rights or remedies. The attorney therefore wrote to the agent of the indemnity company, requesting an acknowledgment of liability for $ 4,000, for permanent total disability. The agent replied that the company would continue the payments of $ 10 a week until medical advice would warrant a discontinuance of the payments, or until the obligation would be canceled by the statute. Plaintiff's attorney replied that he was not satisfied with the attitude assumed by the indemnity company; that, if the company would admit liability for permanent total disability, he "supposed" that he would "have to accede thereto," but that, unless the company would acknowledge liability for permanent total disability, he, the attorney for plaintiff, would submit the matter to the court for determination. In the meantime, on his attorney's advice, plaintiff refused to cash the remaining four or five checks received from the indemnity company.
Thereafter, on the opinion expressed by the Supreme Court of the United States, in the case of the 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, plaintiff's attorney concluded that the case was not governed by the Employers' Liability Act; and he brought the suit under article 2315 of the Civil Code, the general law of damages arising ex delicto. In the alternative, he pleaded that, if the court should hold that the Employers' Liability Act governed the case and excluded all other rights and remedies, then, and in that event only, plaintiff should be awarded compensation in the sum of $ 4,000.
The defendant pleaded: (1) That the petition did not set forth a cause or right of action; and (2) that the court was without jurisdiction ratione materiae. These pleas being overruled, defendant answered, admitting liability under the Employers' Liability Act for $ 10 a week for 400 weeks, unless plaintiff's disability should come to an end sooner. In support of the contention that defendant's liability was limited to the compensation allowed by the Employers' Liability Act, defendant alleged, in the answer to the suit, that the dredgeboat Dixie was not afloat at the time of the accident, but was then in a dry dock, a fixed structure, contrived for the purpose of taking ships out of the water for repairs, having no means of propulsion, not designed for navigation and permanently moored, "and that neither was the said dry dock nor said vessel while it was contained therein, nor the plaintiff while working upon said vessel, within the maritime jurisdiction of the United States, but was within the jurisdiction of the state of Louisiana." Averring that the plaintiff had received and cashed the checks paid for compensation under the Employers' Liability Act, defendant pleaded that plaintiff was estopped and debarred from denying that the case was governed by the statute, and pleaded that plaintiff could not maintain an action for tort without having returned the amount which he had received for compensation under the Employers' Liability Act. In the alternative, and in the event the court should hold that the plaintiff was not bound by the Employers' Liability Act, and that the statute did not govern the case, defendant pleaded and averred that plaintiff's injuries were caused by his own fault and that of his fellow servants, and without any fault or negligence on the part of defendant. The prayer of defendant's answer was that plaintiff's suit be dismissed at his cost, and that plaintiff be ordered to continue to take, as he had theretofore taken, and as defendant had always shown a willingness to pay, the sum of $ 10 a week for 400 weeks, unless plaintiff's disability should come to an end sooner.
Opinion.Defendant's answer limits the issue to the question whether plaintiff's remedy is, under article 2315 of the Civil Code, the general law of damages arising ex delicto, or is restricted to a demand for compensation under the Employers' Liability Act. The same issue was raised by the plea or exception of no cause or right of action; for, if the Employers' Liability Act governs the case, section 34 of the statute excludes all other rights and remedies, viz:
"That the rights and remedies herein granted to an employe on account of a personal injury for which he is entitled to compensation under this act shall be exclusive of all other rights and remedies of such employe, his personal representatives, dependents, relations, or otherwise, on account of such injury."
The plea to the jurisdiction of the state court, ratione materiae, is without merit, and the answer to the suit was, in effect, an abandonment of the plea, because if, as defendant contends, the location of the dredgeboat Dixie was not within the admiralty jurisdiction at the time of the accident, plaintiff's only remedy was to proceed in the state court, and in such case his right and remedy would be controlled by the state statute, the Employers' Liability Act. On the other hand, if the Dixie was, notwithstanding she was in a dry dock, within the admiralty jurisdiction at the time of the accident, plaintiff is entitled to the common-law remedy in the state court.
It is not contended by the defendant that the dredgeboat Dixie was not a ship or vessel within the meaning of the admiralty law or was not subject to admiralty or maritime jurisdiction, by reason of the purpose for which she was constructed or used, or the business in which she was engaged. The only fact or reason stated by defendant for contending that the Dixie was not within the admiralty or maritime jurisdiction at the time of the accident is that the boat was then out of the water, in a floating dry dock. The answer to that contention is that, although the floating dry dock itself was not subject to admiralty and maritime jurisdiction (Cope v. Vallette Dry Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501), it is well settled that a ship or vessel while undergoing repairs in a dry dock is subject to the admiralty and maritime jurisdiction. The United States Supreme Court has so decided, twice, with regard to a vessel locked in a dry dock consisting of an artificial basin from which all the water had been pumped out. See Perry v. Haines (The Robert W. Parsons 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73; and Simmons v. Steamship Jefferson, 215 U.S. 130, 30 S.Ct. 54, 54 L.Ed. 125, 17 Ann. Cas. 907. In the latter case it was held that a court of admiralty had jurisdiction of a libel for salvage for services rendered by tugboats in extinguishing a fire communicated from the shore to a vessel undergoing repairs in a dry dock; and, in the former case cited, the ruling was that the admiralty jurisdiction of the federal courts extended to the enforcement by proceedings in rem of a lien for repairs made upon a vessel in a dry dock. A contract for repairs to a vessel in a dry dock being a maritime contract, so also must the work of the employe engaged in making the repairs be maritime in its nature. On...
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