Pfister v. Bagdett Const. Co.

• Decision Date: 13 November 1933
• Docket Number: No. 5289.,5289.
• Court: Missouri Court of Appeals
• Parties: PFISTER v. BAGDETT CONST. CO. et al.

65 S.W.2d 137

PFISTER v. BAGDETT CONST. CO. et al.

No. 5289.

Springfield Court of Appeals. Missouri.

November 13, 1933.

Appeal from Circuit Court, Scott County.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Hugo Pfister, claimant for injuries, opposed by the Bagdett Construction Company, employer, and the United States Fidelity and Guaranty Company, insurer. From a judgment of the circuit court confirming the award of the compensation commission granting compensation, employer and insurer appeal.

Reversed.

Carter, Jones & Turney and George A. McNulty, all of St. Louis, for appellants.

Oscar A. Knehans, of Cape Girardeau, for respondent.

ALLEN, Presiding Judge.

This action was begun before the Missouri Workmen's Compensation Commission, upon the theory that it had jurisdiction to hear and determine the issues involved.

The facts upon which the claim of respondent are based are as follows:

It is admitted that he was in the employ of the Bagdett Construction Company, and was injured while working on a pile driver, which was mounted on a floating scow, then located in the Mississippi river, about 150 feet from the Missouri bank, near Commerce, Mo. The scow on one side was tied to the driven piles between it and the west bank of the river, and on the other side was anchored in the river.

At the time of the accident the employer, the Bagdett Construction Company, under contract with the United States government, was driving piling in a dike for the purpose of diverting or controlling the current of the river. The claimant was a lead man; a member of the pile driver's crew and was living on what is known as a water boat, provided by the employer for the use of employees as living quarters. The barges from which the pile driver was operated had no motive power by which to move it, and when it became necessary to change its location the moving was done by means of cables, and the testimony showed that if it had to be moved "any great distance" it was necessary to tow it.

On March 19, 1932, respondent, while working as a lead man, swung himself from one platform to the one next lower, and when he alighted his foot dropped on to the head of an axe, twisting his ankle, which caused a bruised condition therein.

The finding of fact by the commission was that the injury consisted of a twisted right ankle, which resulted in a total disability for the term of 191/7 weeks. His allowance by the commission was for medical aid not furnished by the employer or insurer, $211.80, plus compensation for 191/7 weeks loss of time, at the rate of $10.25 per week, making a total sum of $408.01.

In appellant's application for review before the commission, the following statement was made: "This case does not come within the provisions of the Missouri Workmen's Compensation Act" — which application for review was made by the Bagdett Construction Company, employer, and the United States Fidelity & Guaranty Company, insurer. The review was denied, and defendants appealed to the circuit court of Scott county, which, upon submission of the record before the Compensation Commission, on the 25th day of November, 1932, rendered judgment confirming the award of the Missouri Workmen's Compensation Commission, from which judgment the cause comes to this court on appeal.

It is admitted in the record that the Mississippi river is a navigable stream. It is contended by appellants that since the claimant when injured was admittedly on the barge or scow which supported the pile driver, and that the barge was admittedly in the river, some 150 feet from the Missouri shore, and that the Mississippi river is a navigable stream, it is contended by the appellants that the claimant was a seaman, within the meaning of the federal law, to wit, what is known as the Jones Act (46 USCA § 688); and in support of this contention appellants cite the following cases: Lindgren v. U. S., 281 U. S. 38, 50 S. Ct. 207, 74 L. Ed. 686; London Guar. & Acci. Co. v. Ind. Acci. Comm., 279 U. S. 109, 49 S. Ct. 296, 73 L. Ed. 632; Northern Coal & Dock Co. v. Strand, 278 U. S. 142, 49 S. Ct. 88, 73 L. Ed. 232; Resigno v. F. Jarka Co., 248 N. Y. 225, 162 N. E. 13; W. J. McCahan Sugar Ref. & Molasses Co. v. Stoffel (C. C. A.) 41 F.(2d) 651.

Section 688, 46 USCA, is as follows: "Recovery for injury to or death of seaman. Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located."

In the case of W. J. McCahan Sugar Refining & Molasses Co. v. Stoffel (C. C. A.) supra, loc. cit. 654, of 41 F.(2d), the court declares the following principles:

"The law regards a longshoreman or stevedore, injured while engaged in maritime service aboard a ship lying in navigable waters, as a seaman with all his peculiar rights and immunities. There has been more or less protracted legislative — and judicial — effort to bring such seamen, who under federal admiralty acts are entitled to sue for compensation for injuries in federal courts within the scope of state compensation acts. The Supreme Court, reviewing from time to time the position of seamen, the policy of preserving a uniform maritime law and the impolicy of bringing seamen under diverse laws of states, has held such efforts unconstitutional as destroying the characteristic features of the general maritime law, contravening its essential purposes, encroaching upon the paramount power of the Congress to enact national maritime laws and invading the jurisdiction which the Congress has conferred upon courts of admiralty. * * *

"In the case in hand the respondent tried to do what the Supreme Court has said state Legislatures cannot do. The attempt was, pari ratione, equally void. If this contract were otherwise good, it would still be bad because opposed to public policy."

Section 3310(a) of the Missouri Workmen's Compensation Act (Mo. St. Ann. § 3310 (a), p. 8245), is as follows: "This chapter shall apply to all cases within its provisions except those exclusively covered by any federal law," which paragraph read in connection with the federal act, section 688, 46 USCA, together with the authorities hereinafter cited, are conclusive that the Missouri Workmen's Compensation Act (Mo. St. Ann. § 3299 et seq., p. 8229 et seq.), by its express terms, intended to make plain the intention of the State Legislation, to not only refuse to attempt to assume jurisdiction in such cases, but to specifically absolve itself from any intention whatsoever, to invade the Federal Jurisdiction, fully recognizing, as said in the case of Great Lakes Dredge & Dock Co. v. Brown (D. C.) 47 F.(2d) 265, loc. cit. 266, pars. 2 and 3, "Congress has exclusive authority to legislate in matters of admiralty and maritime jurisdiction," and that "proceedings under state compensation act for compensation to one injured in maritime employment on navigable waterway of United States were absolutely void."

In support of appellants' contention that respondent was a seaman, within the meaning of the Jones Act, at the time of the accident, and was not within the jurisdiction of the State Compensation Act, appellants cite the following cases: George Leary Const. Co. v. Matson, 272 F. 461 (C. C. A. 4th Cir.); Resigno v. F. Jarka Co., 248 N. Y....