Millers' Indemnity Underwriters v. Boudreaux

• Decision Date: 23 April 1924
• Docket Number: (No. 508-3935.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 261 S.W. 137
• Parties: MILLERS' INDEMNITY UNDERWRITERS v. BOUDREAUX et al.
• Court: Texas Supreme Court

261 S.W. 137

MILLERS' INDEMNITY UNDERWRITERS v. BOUDREAUX et al.

(No. 508-3935.)^*

Commission of Appeals of Texas, Section A.

April 23, 1924.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by E. J. Boudreaux and others against the Millers' Indemnity Underwriters. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (245 S. W. 1025), and defendant brings error. Affirmed.

Morris & Barnes, of Beaumont, for plaintiff in error.

Howth & O'Fiel, of Beaumont, for defendants in error.

GERMAN, P. J.

There is only one question of real importance to be decided by this court in this case. This question goes to the jurisdiction of the district court of Orange county to consider and pass upon the merits of the case.

The suit was instituted by defendants in error to set aside the award of the Industrial Accident Board, and to recover compensation for the death of O. O. Boudreaux. Judgment was entered by the district court in favor of Mrs. E. J. Braud, one of the defendants in error, and this judgment was affirmed by the Court of Civil Appeals at Beaumont. 245 S. W. 1025.

At the time of his death Boudreaux was employed as a diver by the National Shipbuilding Company, and was working in the waters of the Sabine river, which is admittedly a navigable stream. There is nothing in the record to disclose the general character of the business of the National Shipbuilding Company, but there is enough from which it is inferred that for one thing it was engaged in the building and launching of ships. Nor are the terms of the contract of employment between the company and Boudreaux shown. At the time of his death Boudreaux was sent down into the water of the Sabine river, in the full equipment of a diver, from a small barge or boat, which had on it a little house or dressing room, pumps, and equipment. This barge, or pontoon, as it is called, had no means of self-propulsion, but was towed about with a skiff. It seems to have had no use except in connection with the diving. As to the particular work being done by Boudreaux, the witness Arrington testified:

"The kind of work he was doing there was diving. As to what his purpose was, well, we were fixing to launch a ship, and he was adjusting some kind of bolts, or sawing off piling, or something. He was working on the ways. Yes, sir; the ways are attached to the soil, the bank of the river. As to whether it is a sort of wharf, it is timbers to launch a ship on, and as it goes in the water, of course it goes deeper. Yes, sir; these ways are constructed by driving piling from the shore out into the river at right angles to the river, and sawing them off so that as they go out from the shore they are inclined. He was working on the piling in the river, which was a part of the ways constructed for launching a ship."

Kerr, who was foreman in charge of the work, testified:

"As to the nature of the work he was doing, it was a set of ways that was formerly used for launching ships and, the National Shipbuilding Company decided to do away with that set of ways, or part of it — a hundred feet of it — in order to extend the wharf, and we were dismantling and cutting out those ways. There was no boat on those ways. The last one had been launched on that set of ways. We were dismantling them in order to extend the wharf so as to dismantle some boats the National Shipbuilding Company had bought. Yes, sir; we were taking those out to get the boats in. Yes, sir; that was an obstruction to navigation, and we were taking the obstruction away."

Boudreaux was working under the water about 35 feet from the bank of the stream. Under this state of facts, plaintiff in error contends that the action is one exclusively cognizable in a court of admiralty, and that therefore the district court of Orange county had no jurisdiction. We have delayed consideration of this case somewhat, waiting for the published report of the decision by the Supreme Court of the United States in the consolidated case of State of Washington v. W. C. Dawson & Co. and Industrial Accident Commission v. James Rolph Co., 44 Sup. Ct. 302, 68 L. Ed. 339. However, this decision merely confirms the prior holding of Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145, in holding that Congress cannot, under the federal Constitution, make applicable to persons engaged in maritime service the provisions of state workmen's compensation acts. We are thrown back to the question of whether or not Boudreaux, at the time of his death, was engaged in maritime service, or was performing work under a strictly maritime contract of employment.

The Supreme Court of the United States has recently said (Grant Smith-Porter Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 56 L. Ed. 321, 25 A. L. R. 1008):

"The general doctrine that in contract matters admiralty jurisdiction depends upon the nature of the transaction and in tort matters upon the locality, has been so frequently asserted by this court that it must now be treated as settled."

The cause of action here is not predicated primarily upon a tort. On the contrary, it grows directly out of the contract of employment between the parties, upon the theory that the Compensation Law of the state is read into and became a substantial part of this contract. The element of wrongdoing does not enter into the question of compensation. It follows, therefore, that the present case must be tested by the principle applicable to contract matters; and the question of admiralty jurisdiction must be determined by the subject-matter of the contract — the nature and character of the work being done. Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008; Post v. Burger et al., 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158; Berry v. Donovan & Sons, 120 Me. 457, 115 Atl. 250, 25 A. L. R. 1021. Perhaps the most appropriate test of determining whether a contract is a maritime one or not is that laid down recently by the federal court in the case of The W. T. Blunt (D. C.) 291 Fed. 901:

"If a contract pertains to maritime service or a maritime transaction, that is, if it has a direct or substantial connection or relation to navigation, it is maritime in nature and may afford a sufficient basis for the jurisdiction of a court of admiralty. On the other hand, if such contract is not so related to navigation, even though it refers to a vessel, for example, if it does not tend to enable or aid a vessel to engage in navigation or otherwise pertain to navigation, it cannot be properly termed a maritime contract nor be enforced in a court of admiralty."

The rule is stated in 1 C. J. 1266, as follows:

"A maritime contract must therefore concern transportation by sea, it must relate to navigation, and to maritime employment; it must be one of navigation and commerce on navigable waters. It is not enough that the service which sprang from the contractual relation be performed on water, or even that it be done on board, and for the benefit of a vessel which is afloat."

Tested by these rules, we have no difficulty whatever in arriving at the conclusion that the contract between Boudreaux and the National Shipbuilding Company (judged by the nature of the work he was doing...