Southern Surety Co. v. Stubbs

• Decision Date: 22 November 1917
• Docket Number: (No. 7464.)
• Citation: 199 S.W. 343
• Parties: SOUTHERN SURETY CO. v. STUBBS et al.
• Court: Texas Court of Appeals

199 S.W. 343

SOUTHERN SURETY CO. v. STUBBS et al.

(No. 7464.)

Court of Civil Appeals of Texas. Galveston

November 22, 1917.

On Motion for Rehearing, December 20, 1917.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by Alva Stubbs and another, by next friend, Mrs. J. E. Gowland, against the Southern Surety Company, on a policy issued under the Texas Workmen's Compensation Act. Judgment for plaintiffs, and defendant appeals. Reformed and affirmed.

J. L. Darrouzet, of Galveston, D. T. Mason, of St. Louis, Mo., and J. A. Germany, of Dallas, for appellant. Frank S. Anderson, of Galveston, for appellees.

GRAVES, J.

The appellees, Alva B. Stubbs, widow, and Richard Stubbs, minor, son of E. J. Stubbs, by Mrs. J. E. Gowland, as next friend, sued appellant for the compensation alleged to be due them upon a policy under the Texas Employer's Liability Act, by reason of the drowning of E. J. Stubbs during the storm which raged on the coast of Texas on the 16th and 17th days of August, 1915, while he was employed as assistant engineer on the dredgeboat Houston, then being operated by the Standard American Dredging Company in Texas City Channel, the drowning being due to the capsizing of the dredgeboat.

Appellant answered by general demurrer and general denial, and specially that E. J. Stubbs, at the time of his death, was not "in the course of his employment," and not pursuing the duties for which he was employed, and, further, that his death was the direct and proximate result of the act of God, for which no liability would attach on its part.

The case was tried before the court without a jury, resulting in a judgment for the plaintiffs for the sum of $5,400, being compensation at the rate of $15 per week for a period of 360 weeks, commencing on the date of the death of E. J. Stubbs, this sum of $5,400 to be paid by appellant in 360 weekly installments of $15 each, commencing on the 17th day of August, 1915, together with interest at 6 per cent. from the maturity of each and every installment. From that judgment this appeal is taken.

Subsequent to the filing of its brief in this court appellant has also filed here its suggestion that the district court of Galveston county was without jurisdiction of the subject-matter of this suit for the reason that the accident occurred, under the findings of fact, upon the navigable waters of the United States, and was the result of one of the perils of the sea, bringing it within the exclusive admiralty jurisdiction of the federal courts, and asking on that account that the cause be reversed and dismissed.

The leading case relied upon in substantiation of this position is Southern Pacific v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086. But, after a careful examination of the Jensen Case, we conclude that it does not apply. That case arose under the Employers' Liability or Workmen's Compensation Act of the state of New York (Consol. Laws, c. 67), as the result of a fatal injury to a stevedore while unloading in New York Harbor, navigable water of the United States, a vessel engaged in interstate commerce. The action was directly against the employer, who, under that compulsory statute, had no option in the matter, as is allowed under our Texas law, but was required to subscribe and insure its employés thereunder. There was no question raised or involved respecting the jurisdiction of the state court over the subject-matter, and the United States Supreme Court, through a divided bench, held that the general maritime law, as accepted by the federal courts when acting in the exercise of their admiralty jurisdiction, must be adopted as the rule of decision by state courts of common law, when passing upon any case that might have been brought in the admiralty court, and that the particular New York compensation statute there involved attempted to give a remedy wholly unknown to the common law, conflicting in that respect with the United States Constitution, and for that reason was invalid; but we do not understand that opinion, nor any other to which we have been cited, to hold that the United States District Courts, sitting in admiralty, have exclusive jurisdiction of the subject-matter of suits in personam against the owner, where the subject-matter involves a cause of action of maritime origin; upon the contrary, we understand it to be the settled law of the federal Supreme Court, and so recognized in the Jensen Case, that in all such cases the state courts of common law have concurrent jurisdiction with the District Courts of the United States. Where, however, the suit is in rem against the vessel, the rule is otherwise, and the original jurisdiction of the federal courts is exclusive. Such, we think, is the effect of the prevailing opinion in the Jensen Case, and of the cases therein cited, from which these paragraphs are quoted:

"By section 9, Judiciary Act of 1789 (1 Stat. at L. 76, 77, c. 20), the District Courts of the United States were given `exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors, in all cases, the right of common law remedy, where the common law is competent to give it.' And this grant has been continued. Judicial Code, §§ 24 and 256 (36 Stat. at L. 1091, 1160, c. 231; Comp. Stat. 1916, §§ 991(1), 1233). * * *

"Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the federal District Courts, `saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.' The remedy which the [New York] compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction. The Hine v. Trevor, 4 Wall. 571, 572, 18 L. Ed. 456; The Belfast, 7 Wall. 624, 644, 19 L. Ed. 266, 272; American S. B. Co. v. Chase, 16 Wall. 522, 531, 533, 21 L. Ed. 369, 371, 372; The Glide, 167 U. S. 606, 623, 42 L. Ed. 296, 302, 17 Sup. Ct. 930."

Moreover, the accident here did not occur upon a vessel engaged in interstate commerce, but upon a dredge, which was shown to be not even seagoing, and hence for that reason was not within the purview of the federal Employers' Liability Act, as claimed by appellant, as well as for the further consideration that such act has reference to carriers by interstate railways alone, and not by water. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. Stat. 1916, §§ 8657 to 8665, inclusive); New York Central Railway Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139; Erie Railway Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057.

As is elsewhere herein stated, this was not a suit in personam against the owner of a vessel to recover either upon a contract, or for damages for a maritime or other character of tort, but was upon an insurance contract against an insurer, who voluntarily and for a valuable consideration assumed the obligation to pay compensation to the employé or his beneficiaries, upon the happening of an accidental injury while in the course of his employment, and who received the benefits of that contract in the premiums paid it for carrying the risk. We therefore think that, in these circumstances, its claim that appellees mistook their forum cannot be availed of.

Upon these considerations the contention that the trial court had no jurisdiction is overruled.

Upon the merits the questions presented in appellant's brief for review, being five assignments of error, are: (1) Whether the court erred in rendering judgment for appellees because the death of deceased was the result of an act of God; and (2) in holding that deceased came to his death while acting in the course of his employment; and (3) in finding that the death of the deceased was the result of the perils of the sea, and therefore incident to his employment; and (4) in rendering judgment for the full amount of the compensation provided by law.

After reviewing the entire record, we are convinced that no one of these questions points out error, except that last mentioned relating to the amount of the judgment.

No statement of facts has been brought up with the record, and the most material fact findings of the trial court, none of which are attacked, were the following:

"That on the 16th and 17th days of August, 1915, one E. J. Stubbs was an employé of the Standard American Dredging Company, hereinafter referred to as `subscriber,' under contract of hire at and in the county of Galveston, state of Texas, being so employed as assistant engineer on the dredgeboat Houston, which was engaged in dredging what is known as the Texas City Channel, in Galveston Bay, in said county, said dredgeboat Houston belonging to and being operated by the said subscriber, and that while the said E. J. Stubbs was so engaged and while acting in the course of his said employment the said dredgeboat Houston capsized, by reason whereof the said E. J. Stubbs was accidentally drowned.

"That the said dredgeboat Houston was actually engaged in the work of dredging the said Texas City Channel up to at least noon of Monday, August 16, 1915, and that the said E. J. Stubbs was then upon said dredge, actively in the discharge of his duties as assistant engineer and for and on behalf of the Standard American Dredging Company, and so continued after the actual work of dredging ceased, and all during the time that followed, up to the capsizing of said dredge and the accidental death by drowning of said Stubbs while in the course of his employment; that all during the period from about noon, or a little later, until the capsizing of said dredge, the said Stubbs, together with other employés engaged thereon, were, in the course of their duties, and as a part thereof, directed and required to do all they could to secure the said...