O'LEARY v. Dielschneider

• Decision Date: 25 May 1953
• Docket Number: No. 13346.,13346.
• Citation: 204 F.2d 810
• Parties: O'LEARY v. DIELSCHNEIDER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

204 F.2d 810 (1953)

O'LEARY v. DIELSCHNEIDER et al.

No. 13346.

United States Court of Appeals Ninth Circuit.

May 25, 1953.

Holmes Baldridge, Asst. Atty. Gen., Paul A. Sweeney, Leavenworth Colby, Benjamin Forman, Attys., Department of Justice, Ward E. Boote, Asst. Sol., Herbert P. Miller, Atty., Department of Labor, Washington, D. C., Henry L. Hess, U. S. Atty., Donald W. McEwen, Asst. U. S. Atty., Portland, Oregon, for appellant.

Brown & Van Vactor, Sam Van Vactor, The Dalles, Or., Frank E. Nash, Portland, Or., for appellee.

Before HEALY, BONE, and POPE, Circuit Judges.

HEALY, Circuit Judge.

This case involves an award under the Longshoremen's and Harbor Workers' Compensation Act¹ of benefits on account of the accidental death of one Clayton May. May's employers (appellees here) sued in the court below to set aside the compensation order. The court tried the case de novo and directed a vacation of the award.

The claim for benefits under the Act was made by Louella May. The deputy commissioner after a hearing made findings as follows: That Clayton May, husband of Louella, was employed by appellees as a truck driver; that on February 9, 1948 he was instructed by his foreman to assist the latter in unloading sand from a barge afloat in the Columbia River and moored at the employer's dock²; that in order to board the barge it was necessary for the deceased to follow a path leading to the waters edge and that in following the path May left footprints in the snow; that after boarding the barge May assisted the foreman in taking up slack in the lines, after which he proceeded to shovel sand from the corners of the barge so that the foreman, who was operating the crane, could pick up the sand in the clam shovel; that while engaged in unloading sand from the barge May was instructed by the foreman to proceed to the office of the employer and make out a sales slip in connection with the purchase of sand by a customer who arrived at the yard; that when May failed to follow the instructions of his foreman a search for him was conducted, but he could not be located; that the foreman had followed the tracks in the snow made by May in walking to the waters' edge, prior to boarding the barge, but found no tracks indicating that May had left the barge and returned to the shore; that when last seen alive May was on board the barge; that in accordance with the instructions of the foreman he had attempted to leave the barge, and while doing so fell into the water and was drowned; that a diligent search by the United States Coast Guard failed to locate the body; that at the time of his death May was engaged in maritime employment upon the navigable waters of the United States and that his death arose out of and in the course of said employment.

While the findings do not mention the subject, there is undisputed evidence in the record that May was of a cheerful disposition, that he was an attentive and affectionate husband and father, and that there was no known reason for regarding his disappearance as intentional. It was shown also that his coat was found on the barge at the time of the search.

Appellees sought and obtained from the district court a trial de novo on the issue as to whether or not May sustained an injury resulting in his death upon the navigable waters of the United States. There were pre-trial proceedings and afterwards a full scale trial in which all the facts and circumstances were again inquired into. The court found, among other things, that "the greatest hazard to which Clayton May was exposed at the time of his disappearance was on the shore," and that any inference as to what had happened to him "is sheer conjecture."

The de novo procedure here followed, if supportable at all, is supportable only on the assumption that the doctrine of Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598, retains...