Lindberg v. Southern Casualty Co.

• Decision Date: 21 July 1926
• Citation: 15 F.2d 54
• Parties: LINDBERG et al. v. SOUTHERN CASUALTY CO.
• Court: U.S. District Court — Southern District of Texas

15 F.2d 54 (1926)

LINDBERG et al. v. SOUTHERN CASUALTY CO.

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

July 21, 1926.

Lockhart, Hughes & Lockhart and W. E. Price, all of Galveston, Tex., for plaintiffs.

Brantly Harris, of Galveston, Tex., for respondent.

HUTCHESON, District Judge.

This is a suit properly brought by those entitled under a Louisiana statute to recover the amount due under the Workmen's Compensation Law of the state of Louisiana Act No. 20 of 1914, as amended), on account of the death by accident of the father of plaintiff.

The defendants assert that the statute does not furnish a cause of action which could be tried in a court of law, but merely makes provision for an administrative remedy of such nature as that it can only be applied in and by the tribunals of the state of Louisiana.

I have examined the act and find that it gives a transitory action in the nature of a contractural right cognizable in any court having jurisdiction of the parties, and that there is nothing in it which presents any difficulty in examining and enforcing the claim.

Defendants next contention is that this is a case of admiralty jurisdiction, and invokes that long line of confused authority on this point.

While on the general proposition my view of the matter is that expressed by Mr. Justice Brandeis in his dissenting opinion in Washington v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646, especially in that part of it which constitutes a most admirable contribution to the science of the law, beginning at page 235 of 264 U. S. (44 S. Ct. 302) to the end, and so feeling I would let my mind be bold to find an exception here, it is not necessary for me to do so, for the Supreme Court of the United States, in its slow but inevitable back trek has already made the exception in refusing writ of certiorari (46 S. Ct. 353) in Southern Surety Co. v. Crawford (Tex. Civ. App.) 274 S. W. 280, and in affirming the Supreme Court of Texas in Miller's Indemnity Underwriters v. Brand, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, 1926 A. M. C. 310, in the one case holding that a dredgeman on a dredge in an inland harbor channel, while subject to admiralty jurisdiction, could contract with his employer and obtain the benefit of the Workmen's Compensation Act, and in the other that a driver on a floating barge, on the navigable Sabine river, while subject to admiralty jurisdiction, yet might obtain the benefit of the Workmen's Compensation Act of the state of Texas (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), because the matter was local, and its control by the statutes of the state as to compensation would work no material prejudice to the general maritime law.

The facts here make the case even more clearly one of local law. While there was deep water around the dredge and the channel she was digging was intended to be navigated when finished, she was in fact merely eating her way over land from the Sabine river to Lake Charles, La., to create a navigable channel.

So whether it be considered that the injury did not occur on a navigable stream, and therefore was not the subject of admiralty jurisdiction, or whether it be considered to be within that jurisdiction is immaterial, since in either event the Workmen's Compensation Law of Louisiana would be applicable here, and would furnish the measure of the rights and liabilities of employer and employé.

Upon the merits of the case respondent insists:

(1) That the plaintiffs have failed, to prove, first, that the employé is dead; and, second, that he died as the result of accident.

On the first point, there is positive, uncontradicted testimony that Lindberg fell off the dredge into the water; that he never came up; that there was diligent search made for his body for some thirty minutes before the dredge resumed operations. His son, plaintiff in this case, was employed aboard the dredge at the time, and he...