Orleans Dredging Co. v. Frazie

• Decision Date: 20 May 1935
• Docket Number: 31709
• Court: Mississippi Supreme Court
• Parties: ORLEANS DREDGING CO. v. FRAZIE

161 So. 699

173 Miss. 882

ORLEANS DREDGING CO. v. FRAZIE

No. 31709

Supreme Court of Mississippi

May 20, 1935

Division B

Suggestion Of Error Overruled September 16, 1935.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Suit by Stelly Frazie against the Orleans Dredging Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Brandon & Brandon, of Natchez, for appellant.

It was the contention of the appellant (defendant in the court below) that under the state of facts in this case, section 688 of Title 46 of United States Code Annotated had no application to the case at bar, and, therefore, that the provisions of the Federal Employers' Liability Act section 51, et seq., of Title 45, of United States Code Annotated, were not applicable; that if the plaintiff had any right of action at all, his rights were governed and controlled by the Employers' Liability Act of the state of Louisiana, being Act No. 20 of 1914 of the state of Louisiana as amended by subsequent acts of said state in force at the occurrence of the injury complained of, or, that if that act were not applicable, then that the plaintiff's action was governed by the statutes and common law of the state of Mississippi.

This court has held that in applicable cases arising under the Employers' Liability Act of the state of Louisiana the courts of this state, to-wit, the chancery courts, can and shall administer the provisions of the Louisiana act.

Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395; Travelers Ins. Co. v. Inman, 128 So. 877.

The rights and remedies of the parties to a contract of employment governed by the provisions of the Employers' Liabilitity Act of Louisiana are exclusively those provided in that act and are exclusive of any other rights or remedies.

Phillips v. Guy Drilling Co., 143 La. 951, 79 So. 549; LaBourdette v. Doullut & Williams Shipbuilding Co., Inc., 156 La 412, 100 So. 547; Hargis v. McWilliams Co., 9 La. App. 108, 118 So. 88; Kern v. Southport Mill. Ltd., 174 La. 432, 141 So. 19; Liner v. Riverside Gravel Co., 127 So. 146.

The Louisiana act applies to contracts of employment made in the state, whether to be performed within or without the state whether performed within or without the state, and whether the injuries sustained in the course of that employment be sustained within or without the state.

Hargis v. McWilliams Co., Inc., 9 La. App. 108, 119 So. 88; United Dredging Co. v. Lindberg, C. C. A., 1927, 18 F.2d 453; Festervand v. Laster, 15 La. App. 159, 130 So. 634, 637; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491, 495, Ann. Cas., 1917E 390, 12 A.L.R. 1207; Selser et al. v. Bragman's Bluff Lbr. Co., Inc., 146 So. 690, 700; Watts v. Long, 116 Neb. 656, 218 N.W. 410, 59 A.L.R. 728; Bradford Elec. Light Co., Inc., v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 L.Ed. 1026; Durrett v. Eicher-Woodland Lbr. Co. et al., 19 La. App. 494-504, 136 So. 112, 140 So. 867; Quong Ham Wah Co. v. Industrial Accident Commission, 255 U.S. 445, 65 L.Ed. 723, 41 S.Ct. 373, 184 Cal. 26, 12 A.L.R. 1190, 192 P. 1021; Alaska Packers Assn. v. Industrial Accident Commission, 79 S.Ct. 554.

By his acceptance of hospitalization, medical care, and payment of compensation under the Louisiana act, the appellee elected to be bound by the terms of the Louisiana act and is estopped from resorting to any other right or remedy.

National Cast Iron Pipe Co. v. Higginbotham, 112 So. 734; Ross et ux. v. Cochran & Franklin Co., Inc., 112 So. 141.

It is the contention of this appellant that the work and employment was not governed by the provisions of section 688, Title 46, U.S.C. A., and that this action was not brought and is not maintainable under the provisions of that act and therefore that said act is not applicable to this action, and further that the provisions of the said Railway Employers' Liability Act, section 51, et seq., Title 45, U.S.C. A., has no application to the case at bar.

The jurisdiction of the United States courts in matters of admiralty is granted by the provisions of article III, section 2, clause 1, of the constitution of the United States of America. The jurisdiction of admiralty courts of the United States includes only maritime causes or such as arise out of commerce and navigation on the high seas or the navigable waters of the United States of America, and the test of such jurisdiction is the nature of the claim upon which the suit is founded and not the form of remedy resorted to.

The Mary F. Chisohm, 129 F. 814; United Transportation, etc., Co. v. New York, etc., Transportation Line, 180 F. 902, 185 F. 386, 107 C. C. A. 442.

All admiralty jurisdiction refers directly or indirectly to navigation.

United States v. Burlington Ferry Co., D. C. Iowa, 1884, 21 F. 311, 335; Atlantic Transport Co. v. Imbrovak, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208, 51 L.R.A. (N.S.) 1157.

But the tort committed not on board a vessel and/or not in navigable waters is not within original and exclusive admiralty jurisdiction.

In general it may be said that only those waters are "navigable waters of the United States" which have from custom and use or dedication been or become public waterway highways of the United States and have thereby become impressed with the privilege of public use for trade and commerce.

Excanaba, etc., Transportation Co. v. Chicago, 107 U.S. 682, 2 S.Ct. 185, 27 L.Ed. 442, 12 F. 777; Rhea v. Newport News R. Co., 50 F. 16, 21; Grand Trunk R. Co. v. Backus, 46 F. 211, 214; Miller v. New York, 109 U.S. 395, 3 S.Ct. 228, 27 L.Ed. 971, 3 Blatchf. 469, 17 Fed. Cas. No. 9585, 10 F. 513.

Clearly the cut or ditch in question could never have been said to have become a "navigable water of the United States,"--at least prior to October 8, 1934.

State of Oklahoma v. State of Texas, 42 S.Ct. 406, 258 U.S. 574, 66 L.Ed. 771; Brower-Elliott Oil & Gas Co. v. United States, 43 S.Ct. 60, 260 U.S. 77, 67 L.Ed. 140.

Navigability is determined by the nature of the stream in its entirety.

Waterloo Woollen Mfg. Co. v. State, 194 N.Y. 155, 118 Misc. 516; McDonald v. Apple River Power Co., 164 Wis. 450, 160 N.W. 156.

The general test of navigability is whether or not the waters in their ordinary condition are used or susceptible of being used as highways of commerce.

Economy Light & Power Co. v. United States, 41 S.Ct. 411, 256 U.S. 113, 65 L.Ed. 847, 256 F. 791; Blackman v. Mauldin, 164 Ala. 337, 51 So. 23, 27 L.R.A. (N.S.) 670; Rhodes v. Otis, 33 Ala. 528, 73 Am. Dec. 439; Bissel v. Olson, 26 N. Dak. 60, 143 N.W. 340; The old case of the Monticello, decided in 1874, 20 Wall. 430, 22 L.Ed. 391.

There is no judicial presumption of navigability of any water which is not known to be navigable geographically, historically, traditionally, and any given water not so generally known will not be presumed to be navigable.

Donnelly v. United States, 33 S.Ct. 1024, 228 U.S. 708, 57 L.Ed. 1035; Leheihy v. Ashland Lbr. Co., 49 Wis. 165, 5 N.W. 471; Allahay v. Mauston Elec. Service Co., 116 N.W. 4, 135 Wis. 345, 16 L.R.A. (N.S.) 207; Mintzer v. N. American Dredg. Co., 242 F. 553, 245 F. 297, 157 C. C. A. 489.

In cases similar to the ones at bar the courts have by a large majority held that the state law applies and that no question of maritime law is involved.

Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1207; Philadelphia, etc., R. Co. v. Philadelphia, etc., Steam Towboat Co., 23 Howard 215, 16 L.Ed. 433; Chisohm v. Northern Transportation Co., 61 Barb. 388; United States v. Burlington, etc., Ferry Co., 21 F. 331, 336; The City of Selem, 37 F. 846, 849; Campbell v. Hackfeld, 125 F. 696, 700; 62 C. C. A. 274; Imbrovck v. Hamburg American Steam Packet Co., 190 F. 229, 193 F. 1019, 113 C. C. A. 398.

The Jones Act is not applicable.

Southern Surety Co. v. Crawford, 274 S.W. 280, 270 U.S. 655; Sultan Ry. Co. v. Dept. of Labor, 277 U.S. 135; United Dredging Co. v. Lindberg, 18 F.2d 453, 274 U.S. 759, 71 L.Ed. 1337; Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69.

Assuming for the sake of argument that this case was not exclusively governable by the provisions of the Employers' Liability Act of the state of Louisiana, we believe that we have affirmatively demonstrated that the case is not governable and controllable by the terms and provisions of section 688, Title 46, U.S.C. A., then if that be so the plaintiff's case, if any he has, is governable by the laws of the state of Mississippi applicable to actions for tort as to personal injuries sustained within the territorial limits of the state of Mississippi. That being so, the fellow servant doctrine applies, and this defendant was entitled to have the jury instructed with reference thereto.

Engle & Laub and Whittington & Brown, all of Natchez, for appellee.

The Mississippi river has been declared navigable.

Morgan and Harrison v. Reading, 3 S. & M. 366, 11 Miss. 366; The Magnolia v. Marshall, 39 Miss. 109.

We submit to the court that if the Seamen's Act is applicable, that is to say, if at the time appellee was injured he was a seaman within the purview of that act, and, therefore, entitled to the rights and remedies provided by that act, then the question of whether or not the Louisiana Compensation Law could be applicable and the question of whether or not there was any assumption of risk by the appellee in his employment, and the question of whether or not the appellant would be liable to appellee because of the negligence of a fellow servant, are all disposed of and no longer pertinent or material principles involved in this case.

If the Seamen's Act is applicable to this case, then it is a case of admiralty and maritime jurisdiction and is...