Ingalls Shipbuilding Corporation v. Neuman, Civ. A. No. 3833.

• Citation: 322 F. Supp. 1229
• Decision Date: 18 December 1970
• Docket Number: Civ. A. No. 3833.
• Parties: INGALLS SHIPBUILDING CORPORATION and the American Mutual Liability Insurance, Plaintiffs, v. Raymond E. NEUMAN, Deputy Commissioner, United States Employees' Compensation Commission, 7th Compensation District, Defendants, Mrs. Luieda Belton, as Legal Guardian of Wanda Lynn Wright and Patricia Wright, Minor Children of Patrick Wright, deceased, Intervening Defendant.
• Court: U.S. District Court — Southern District of Mississippi

322 F. Supp. 1229

INGALLS SHIPBUILDING CORPORATION and the American Mutual Liability Insurance, Plaintiffs, v. Raymond E. NEUMAN, Deputy Commissioner, United States Employees' Compensation Commission, 7th Compensation District, Defendants Mrs. Luieda Belton, as Legal Guardian of Wanda Lynn Wright and Patricia Wright, Minor Children of Patrick Wright, deceased, Intervening Defendant.

Civ. A. No. 3833.

United States District Court, S. D. Mississippi, S. D.

December 18, 1970.

COPYRIGHT MATERIAL OMITTED

Eldon L. Bolton, Gulfport, Miss., for plaintiffs.

Robert Hauberg, U. S. Atty., Jackson, Miss., for defendant Commission.

Eaton A. Lang, Jr., Gulfport, Miss., for intervenor.

OPINION

NIXON, District Judge.

This action is brought pursuant to the provisions of ? 21, Longshoremen's and Harbor Workers Compensation Act, 33 U.S.C., ? 921, seeking reversal of a compensation order by the defendant, Deputy Commissioner Raymond E. Neuman, awarding benefits to Mrs. Luieda Belton, on behalf of two minor children, Wanda Lynn Wright, and Patricia Jackson Wright, resulting from the death of Patrick Wright, an employee of Ingalls Shipbuilding Corporation.

The operative facts of this case as found by the Deputy Commissioner are, with minor exceptions, undisputed between the parties and may be summarized as follows. In about the year 1951 or 1952, the deceased employee Patrick Wright and Virginia Freeman Jackson, the legal wife of George Jackson of Birmingham, Alabama, began living together as man and wife, initially in Camden, Alabama, and thereafter in Lucedale, Mississippi. This relationship continued until the death of Virginia Freeman in March of 1966. During this approximately 15 year period, Virginia Freeman gave birth to two minor children involved herein, Patricia Jackson Wright, born March 12, 1954 and Wanda Lynn Wright, born June 5, 1962. Following the death of Virginia Freeman, the deceased employee, having no family of his own, arranged with Mrs. Luieda Belton, the sister of Virginia Freeman and claimant herein, for the two children to live with her in Bessemer, Alabama. There was an agreement between the decedent and Mrs. Belton that he would send $20.00 per week for the support of the two children. Although this financial commitment was largely dishonored by the decedent who contributed only $44.00, $24.00 of which went to Patricia individually, during the following 18 month period, he repeatedly informed Mrs. Belton that the promised financial assistance would be forthcoming. The decedent did not at any time, visit the children in Bessemer, Alabama, but did have them with him for approximately four weeks in Lucedale, Mississippi during the summer of 1967.

On September 27, 1967 Patrick Wright, while performing services for his employer, plaintiff herein, upon navigable waters of the United States, fell approximately 40 feet while descending a ladder within a vessel. This accident resulted in multiple fractures of his head and upper extremities, causing instantaneous death.

Thereafter, a claim was filed by Mrs. Luieda Belton, as legal guardian of the two minor children, which claim was denied by Ingalls Shipbuilding Corporation and its carrier, American Mutual Liability Insurance Company. The case was thereafter heard on September 30, 1969 in Birmingham, Alabama, before the defendant, Raymond E. Neuman, Deputy Commissioner for the 7th Compensation District.

The Deputy Commissioner determined that the two children in question were born of the decedent, Patrick Wright, and Virginia Freeman. It was his further determination that because at the inception of this relationship Virginia Freeman was legally married to George Jackson, and there was no evidence that this marriage had ever been dissolved, the two children were not the legal children of the decedent. Notwithstanding the absence of a legal relationship between the decedent and the two children, the Deputy Commissioner determined that the children did fall within the definition of "child" under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. ? 902(14), and were thereby entitled to benefits at the aggregate rate of $52.50 per week (50% of $105.00, the maximum average weekly wage upon which death benefits may be computed, 35% to the first child, 15% to a second child, share and share alike), beginning September 27, 1967, the date of the employment related injury resulting in death, and continuing subject to the limitations of the Act.¹

The Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. ? 902(14), defines child as follows:

"(14) `Child' shall include a posthumous child, a child legally adopted prior to injury of employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of the injury, and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him."

The question before this Court is whether there is substantial evidence in the record to support the Deputy Commissioner's finding that Patricia Wright and Wanda Lynn Wright are "surviving children" of the decedent, Patrick Wright, as that term is defined under the Act. Accordingly, under the facts of this case, these children must either be shown to be acknowledged illegitimate children of the decedent or "children in relation to whom the decedent stood in loco parentis for at least one year prior to the time of the injury."

This Court is fully aware of the standard to be applied in determining whether there was adequate evidence in the record to support the findings of the Deputy Commissioner. This standard was well expressed by the Supreme Court in O'Keeffe v. Smith, Hinchman & Grylls, 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895 (1965), as follows:

"The rule of judicial review has therefore emerged that the inferences drawn by the Deputy Commissioner are to be accepted unless they are irrational or `unsupported by substantial evidence on the record * * * as a whole.'" (380 U.S. at 362, 85 S.Ct. at 1014).

It is therefore immaterial that this Court may not have drawn the same inferences or reached the same conclusions as the Deputy Commissioner, provided his findings are supported by "substantial evidence."² This Court will not substitute its own judgment or disturb inferences properly drawn by the Deputy Commissioner.³

At the outset, the initial question is whether state or federal law should be applied in determining the meaning of the term "child" as defined by Paragraph (14) of ? 2 of the Act, 33 U.S.C. ? 902(14). In considering the definition of the term "next of kin" as used in the Federal Employers Liability Act, 45 U.S.C. ? 51, the Supreme Court, in Seaboard Air Line R. Y. v. Kenney, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762 (1916), stated:

"There can be now no question that the act of Congress in so far as it deals with the subjects to which it relates is paramount and exclusive. It is therefore not disputable that recovery under the act can be had alone in the mode and by and for the persons or class of persons in whose favor the law creates and bestows a right of action. * * * But this is irrelevant, since the controversy concerns only the meaning of the act, which it is conceded, when rightly interpreted, is entitled to exclusive operation.

"Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various states to whose authority that subject is normally committed, it would seem to be clear that the absence of a definition in the act of Congress plainly indicates the purpose of Congress to leave the determination of that question to the state law. But, it is urged, as next of kin was a term well known at common law, it is to be presumed that the words were used as having their common-law significance, and therefore as excluding all persons not included in the term under the common law; meaning, of course, the law of England as it existed at the time of the separation from the mother country. Leaving aside the misapplication of the rule of construction relied upon, it is obvious that the contention amounts to saying that Congress, by the mere statement of a class, that is, next of kin, without defining whom the class embraces, must be assumed to have overthrown the local law of the states, and substituted another law for it; when conceding that there was power in Congress to do so, it is clear that no such extreme result could possibly be attributed to the act of Congress without express and unambiguous provisions rendering such conclusion necessary. The truth of this view will be made at once additionally apparent by considering the far-reaching consequence of the proposition, since, if it be well founded, it would apply equally to the other requirements of the statute, ?€”to the provisions as to the surviving widow, the husband and children, and to parents, thus, for the purposes of the enforcement of the act overthrowing the legislation of the states on subjects of the most intimate domestic character and substituting for it the common law as stereotyped at the time of the separation. The argument that such result must have been intended, since it is to be assumed that Congress contemplated uniformity, that is, that the next of kin entitled to take under the statute should be uniformly applied in all the states, after all comes to saying that it must be assumed that Congress intended to create a uniformity on one subject by producing discord and want of uniformity as to many others." (240 U.S. at 493, 494, 36 S.Ct. at 459-460).

In Ellis v. Henderson,⁴ the Court of Appeals for the Fifth Circuit in considering the meaning of the term "child", as defined by the Longshoremen's Act, noted that "insofar as the...