Riley v. Henderson, 15099.

• Citation: 218 F.2d 752
• Decision Date: 02 February 1955
• Docket Number: No. 15099.,15099.
• Parties: Darnell RILEY et al., Minors, represented by their mother, Carrie Mae Riley, Individually, etc., Appellants, v. Joseph H. HENDERSON, Deputy Commissioner, Seventh Compensation District, United States Employee Compensation Commission et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

218 F.2d 752 (1955)

Darnell RILEY et al., Minors, represented by their mother, Carrie Mae Riley, Individually, etc., Appellants, v. Joseph H. HENDERSON, Deputy Commissioner, Seventh Compensation District, United States Employee Compensation Commission et al., Appellees.

No. 15099.

United States Court of Appeals, Fifth Circuit.

February 2, 1955.

Adrian G. Duplantier, New Orleans, La., for appellants.

Prim B. Smith, Jr., Asst. U. S. Atty., St. Clair Adams, Jr., New Orleans, La., George R. Blue, U. S. Atty., Washington, D. C. (Stuart Rothman, Sol. of Labor, Ward E. Boote, Asst. Sol., Herbert P. Miller, Atty., U. S. Dept. of Labor, Washington, D. C., of counsel), for appellees.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

TUTTLE, Circuit Judge.

This proceeding was instituted by appellants, the widow and five minor children of Stanford Riley, to review and set aside an order of the Deputy Commissioner, United States Employees' Compensation Commission, holding that Riley's death did not arise out of and in the course of his employment, and denying their claim for death benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. §§ 901-950, such proceeding being authorized by 33 U.S.C.A. § 921(b). The district court refused a trial de novo and dismissed the proceeding, and this appeal was taken on the grounds, first, that the trial court erred in not reversing the compensation order since it was not based on any substantial evidence, and second, that a trial de novo should have been granted on the sole issue before the Deputy Commissioner, whether Riley's death arose out of and in the course of his employment.

These facts were undisputed: During the evening of August 14, 1951, and the early morning of the next day, Riley was working as a longshoreman for Atlantic & Gulf Stevedores, Inc., helping unload two barges moored to the offshore side of the S. S. Helenic Wave, at the Cotton Warehouse Dock in New Orleans. His body, dressed in work clothes, was found one-half mile downstream in the Mississippi River on August 17, death having been caused by drowning.

As to the time and manner of his falling into the river, there were no eyewitnesses. Two longshoremen, Vaughn and Brown, who with Riley were the last men to leave the barges the morning of August 15th, testified for the claimant that just after the foreman Ralph told Riley to quit work, they saw Riley walk past them on the barge, head down, apparently searching for something on the deck, dressed in the same work clothes as he was wearing when found in the river; and that shortly afterwards (about 3:40 A.M.) they heard a splash between the ship and the barge. They testified further that they ran to the side of the barge and searched and called for Riley without result, and that they told Ralph that they believed a man had fallen overboard. Two other longshoremen testified they heard Brown's report of the matter to Ralph.

The evidence for the employer and its insurer conflicted sharply with this testimony. Ralph said that no such conversation ever occurred between him and Brown, Vaughn, or anyone else; and Petersen, the employer's timekeeper, testified that he handed Riley his time card in the warehouse after Riley finished work, and not later than 3:40 A.M., at which time Riley was dressed in his street clothes, and last saw him walking through the warehouse towards an open door leading to the public streets.

Obviously not all the witnesses were entirely truthful, and the credibility of the witnesses on both sides was subjected to sharp attack. The deputy commissioner found the facts to be as Ralph and Petersen testified. We agree with the district court that their testimony constitutes substantial evidence that Riley's death did not arise out of and in the course of his employment, and that a determination whether there is substantial evidence is the proper scope of judicial review of this order, as both sides concede. 5 U.S.C.A. § 1009(e); 33 U.S.C.A. § 920(a); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483; Southern Stevedoring Co., Inc., v. Voris, 5 Cir., 218 F.2d 250. It follows that the district court...