Johnson v. Sword Line, Civ. A. 12779.

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: FOLLMER
• Citation: Johnson v. Sword Line, 146 F.Supp. 940 (E.D. Pa. 1956)
• Decision Date: 08 March 1956
• Docket Number: Civ. A. 12779.
• Parties: Edward JOHNSON v. SWORD LINE, Inc., a New York Corporation.

146 F. Supp. 940

Edward JOHNSON v. SWORD LINE, Inc., a New York Corporation.

Civ. A. 12779.

United States District Court E. D. Pennsylvania.

March 8, 1956.

Benjamin Pomerantz, Philadelphia, Pa., for plaintiff.

Rawle & Henderson, Philadelphia, Pa., for defendant.

FOLLMER, District Judge.

In October 1951, plaintiff, Edward Johnson, instituted this action against defendant, Sword Line, Inc., to recover damages for personal injuries allegedly received while he was working aboard defendant's vessel, S. S. Alabama Sword, while employed as a longshoreman by Lone Star Stevedoring Company at Philadelphia on June 28, 1950.

Defendant answered in February 1952, setting forth, inter alia, that plaintiff had filed a claim against his employer, Lone Star Stevedoring, Inc., for compensation under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., by reason of the injuries alleged to have been sustained by him at the time alleged in the complaint; that the Deputy Commissioner for the Third Compensation District entered an Order on November 23, 1951, awarding to plaintiff the sum of $725.71 as compensation for said injuries; that the said employer and its insurance carrier have paid and fully satisfied the said award, which award modified a previous award made on July 12, 1951; that plaintiff had not filed an election to sue a third party in accordance with Section 33 of the aforesaid Act. Approximately three years after filing its answer, defendant on January 21, 1955, filed request for admission of facts and of genuineness of documents, to which was attached copies of the original and amended Orders above referred to. Plaintiff has admitted the genuineness of the Orders, and in his brief states as follows, "Counsel for the plaintiff received permission from Mr. Fuges, counsel for the employer, to bring this action."

Section 33 of the Act, subparagraphs (a) and (b), 33 U.S.C.A. § 933, provides as follows:

"(a) If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer is liable in damages, he may elect, by giving notice to the deputy commissioner in such manner as the Secretary may provide, to receive such compensation or to recover damages against such third person.

"(b) Acceptance of such compensation under an award in a compensation order filed by the deputy commissioner shall operate

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