Penn Stevedoring Corporation v. Cardillo

• Decision Date: 28 August 1947
• Citation: 72 F. Supp. 991
• Parties: PENN STEVEDORING CORPORATION et al. v. CARDILLO, Deputy Commissioner, Second Compensation District, et al.
• Court: U.S. District Court — Southern District of New York

72 F. Supp. 991

PENN STEVEDORING CORPORATION et al. v. CARDILLO, Deputy Commissioner, Second Compensation District, et al.

District Court, S. D. New York.

August 28, 1947.

Kirlin, Campbell, Hickox & Keating, of New York City (Vernon S. Jones, of New York City, of counsel), for plaintiffs.

John F. X. McGohey, of New York City, for defendant Cardillo.

Milton Koerner, of New York City, for defendant Best.

RIFKIND, District Judge.

Action by an employer, Penn Stevedoring Corporation, and its insurance carrier, Glens Falls Indemnity Company, to set aside, under § 921(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., a compensation award made by defendant Cardillo, a Deputy Commissioner under the Act, to the children of Earl Best, the deceased employee.

The defendants, Cardillo and Lulu Mae Best, mother of the children, move, before answer, to dismiss the complaint for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. The plaintiffs cross-move for summary judgment.

It is clear that the findings of the deputy commissioner support the award; the only question is whether the evidence supports the findings. Marshall v. Pletz, 1943, 317 U.S. 383, 63 S.Ct. 284, 87 L.Ed. 348; Parker v. Motor Boat Sales, Inc., 1941, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184; South Chicago Coal and Dock Co. v. Bassett, 1940, 309 U.S. 251, 60 S.Ct. 544, 84 L. Ed. 732. Since the transcript of the hearing before the deputy commissioner is made part of the complaint, all issues can be resolved upon this motion.

On July 13, 1946, the deceased was employed as operator of a gasoline tractor, by means of which he hauled freight from the dock at Pier 40 on the North River in New York to a car float, used to transport cargo west, to the New Jersey shore. The parties have called this the west-bound float. Alongside the west-bound float was a float from which the plaintiff stevedoring company was engaged in unloading freight— the east-bound float. Decedent was last seen alive on the east-bound float. His hat was found shortly after his disappearance on the edge of the east-bound float; his body was discovered later that day in the water between the floats, near where his hat had been found.

The deputy commissioner's findings of fact included the following:

"* * * that at approximately 11:35 a. m. on July 13, 1946, the employee herein operated his tractor and hauled a load of merchandise to the west bound float which was tied up alongside of an east bound float at the pier; that after discharging the flat car which was loaded with freight, the employee as usual, had about 10 minutes' spare time before making another trip during which period he had to wait until the freight on the flat car was loaded onto the freight car; that during such lull in the work the employee walked toward the river-end of the float, presumably to answer a call of nature and thereafter proceeded to return by way of the east bound float which was tied up alongside of the west bound float; that on the east bound float the employee stopped momentarily and curiously examined the bales of Army clothing which were being unloaded from the said east bound float; that he was cautioned by a tractor-operator on the east bound float not to handle the bales, whereupon the employee left and proceeded in the direction of the west bound float and to the place where he had left his tractor; that while crossing from the east bound float to the west bound float, the employee accidentally fell between the two floats into the water and died by asphyxsia of submersion; that the employee did not violate any fixed orders of the employer and he did not commit an illegal act; that employees performing work similar to that of the deceased employee did occasionally during the 10 minute waiting period between trips stroll away from the place where they had left their tractors and when the flat-cars were being loaded or unloaded; that the death of the employee arose out of and in the course of the employment; that the employer and carrier are liable for the payment of death benefits to the surviving children. * * *"

Plaintiffs contend that a number of the deputy commissioner's findings are unsupported by the evidence, that others are based on evidence from which only inferences inconsistent with the findings are permissible. Plaintiffs' position is summarized in their memorandum:

"1. Best's sole work was to operate a tractor and haul freight from the dock to a westbound car float.

"2. He was not permitted nor was he even suffered to go upon the eastbouund barge.

"3. He violated orders in going upon the eastbound barge. He had been warned `each and every day to stay on the job.'

"4. He was not `returning' to his place of employment when he left the westbound float to go upon the eastbound float. On the contrary, he was deviating from his employment.

"5. He went on the eastbound float not on any business of his employer and not for his employer's benefit.

"6. He went upon the eastbound float solely for his own private purposes.

"7. He was killed before he could get back to his westbound barge and his death was caused by a hazard not connected in any way with the place of his work.

"8. His injury did not arise out of and in the course of his employment."

Plaintiffs' contention boils down to two propositions: First, Best, by boarding the east-bound float violated a company order, thereby taking himself out of his employment. Second, whether or not the first proposition is true, Best's presence on that float was an abandonment of his employment. If either is true,...