Howard v. Monahan, 335.

• Decision Date: 05 January 1929
• Docket Number: No. 335.,335.
• Citation: 31 F.2d 480
• Parties: HOWARD et al. v. MONAHAN.
• Court: U.S. District Court — Southern District of Texas

31 F.2d 480 (1929)

HOWARD et al. v. MONAHAN.^*

No. 335.

District Court, S. D. Texas, at Houston.

January 5, 1929.

Cole, Cole, Patterson & Kemper, of Houston, Tex., for plaintiffs.

H. M. Holden, U. S. Atty., of Houston, Tex., for Monahan.

Royston & Rayzor, of Galveston, Tex., for intervener Texas Employers' Ins. Ass'n.

HUTCHESON, District Judge.

This is a proceeding brought by claimant under the authority of section 21 of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 921), to review a compensation order rejecting her claim.

The petition sets up that there were two claims filed, one for disability prior to the death of Tusan Howard, and one for benefits filed after his death. These claims were known on the deputy commissioner's docket as Case No. 32 — 24. The transcript of testimony at the hearing is styled "Case No. 32 — 24." The compensation order of the commissioner is as follows:

"Findings of Fact.

"That on the 15th day of October, 1927, the above-named employee was in the employ of the employer above named at Houston, in the state of Texas, in the Eighth compensation district, established under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and that the liability of the employer for compensation under said act was insured by Texas Employers' Insurance Association.

"That on October 15, 1927, about 4 p. m., while engaged in stowing cotton on board the steamship Conness Peak, which steamship was lying in the Houston Ship Channel, Houston, Texas, the said Tusan Howard was struck in the right knee by a bale of cotton, and his right knee and leg were jammed against cargo already stowed.

"That the average weekly wages of said Tusan Howard was $20.

"That said Tusan Howard died February 9, 1928.

"That notice of death was given to the employer and to the deputy commissioner within 30 days from the date of death.

"That Lula Howard is the surviving wife of Tusan Howard.

"That Soloman Dave, born December 7, 1913, Leroy Dave, born January 10, 1915, and Elinor Dave, born July 30, 1917, were the stepchildren of said Tusan Howard, deceased, and were living with and dependent upon him for support at the time of the injury.

"Upon the foregoing facts it ordered that the claim be and it is hereby rejected for the following reasons:

"That the death of said Tusan Howard was not caused by the injury sustained by said Tusan Howard October 15, 1927."

Plaintiffs challenge the order as not in accordance with law (1) because they say that the evidence permitted no reasonable conclusion other than that claimant's death was caused by the injury; and (2) that the findings of fact of the commissioner peremptorily require a finding of law that the claim for disability prior to death should have been allowed.

Upon the first contention I do not agree with plaintiffs. I have carefully read the record, and find in it ample evidence to sustain the commissioner's conclusion that the death of Tusan Howard was not caused by his injury. This being so, his rejection of the death claim could not be in law erroneous.

Upon the other contention, however, I think...