Summerlin v. Massman Const. Co.

• Decision Date: 10 November 1952
• Docket Number: No. 6477.,6477.
• Citation: 199 F.2d 715
• Parties: SUMMERLIN v. MASSMAN CONST. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

199 F.2d 715 (1952)

SUMMERLIN v. MASSMAN CONST. CO. et al.

No. 6477.

United States Court of Appeals Fourth Circuit.

Argued October 17, 1952.

Decided November 10, 1952.

Louis B. Fine, Norfolk, Va. (Phillip B. West and Howard I. Legum, Norfolk, Va., on brief), for appellant.

Lewis H. Hall, Jr., Newport News, Va. (W. Worth Martin, Newport News, Va., on brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

James W. Summerlin brought suit in the District Court under the Jones Act, 46 U.S.C.A. § 688, which gives any seaman who shall suffer personal injury in the course of his employment the right to maintain an action for damages at law, and confers jurisdiction upon the court of the federal district in which the defendant employer resides or has his personal office. The plaintiff alleged that on September 21, 1950 he was employed by the defendants as a fireman on a floating derrick owned by the defendants and operated by them in the York River in the State of Virginia; and while so employed the defendants negligently failed to provide him with safe equipment and a safe and seaworthy vessel, and in consequence, his right wrist was lacerated and the fourth and fifth fingers of his right hand were rendered useless.

The defendants appeared and denied liability on the ground that after the injury the plaintiff and the defendants executed an agreement for the payment of compensation under the Virginia Workmen's Compensation Act, Code 1950, § 65-1 et seq., and filed the agreement with the State Industrial Commission which entered an award of $20 per week which began on September 29, 1950 and continued until terminated within the provisions of the statute, and that the award was paid to and accepted by the plaintiff.

The defendants also defended on the ground that the plaintiff was not a seaman within the meaning of the Jones Act, and that the floating derrick on which he was employed was not a vessel engaged in navigation. They alleged that the structure was a crane or derrick which was anchored in the river and was engaged in pouring concrete into certain forms incident to the building of a bridge across the river; and that the plaintiff was not employed as a member of the crew of a vessel, but was employed to perform the duties of a fireman on the crane or derrick, and such other duties as the defendants might assign to him in the building of the bridge. The defendants also denied that they had been guilty of negligence, as alleged in the complaint.

The matter came before the court for hearing on the pleadings and on a statement of facts by counsel, and the court reached the conclusion that there could be no recovery under the Jones Act. The facts on which the decision turns were amplified by statements, made by counsel without objection, to the effect that the barge on which the crane was erected had no motive power of its own and no sleeping quarters for the plaintiff and his fellow employees and that the barge was moved in the water from time to time to facilitate the work during the construction of the bridge.

The District Judge found it unnecessary to consider the defense that the plaintiff, having accepted compensation, was barred from prosecuting the instant suit, and based the opinion entirely on the ground that the plaintiff was not a seaman or crew member injured upon a vessel engaged in navigation on navigable waters at the time of his injury. Confining ourselves to this phase of the case, we find ourselves in disagreement with the conclusions of the court. The case cannot be distinguished on this point from that considered by us in Jeffrey v. Henderson Bros., 4 Cir., 193 F.2d 589, where employees on a coal cleaning barge, which had been libelled by material men, filed wage claims that were held to be prior to the claim of a mortgagee. The barge was furnished with machinery and equipment for cleaning and screening coal. It was without motive power of its own but had been moved close to the shore on the Monongahela River in West Virginia and kept in place by mooring lines and spuds. The machinery was used to lift coal from refuse piles along the river bank to the barge where it was cleaned and transferred to barges for transportation and sold. The wage claimants were primarily...