Texas Employers Ins. Ass'n v. Sparrow

Decision Date22 November 1939
Docket NumberNo. 2262-7370.,2262-7370.
Citation133 S.W.2d 126
PartiesTEXAS EMPLOYERS INS. ASS'N v. SPARROW et al.
CourtTexas Supreme Court

This is a compensation case, in which the beneficiaries of Allen Sparrow, deceased, were claimants, and they will be referred to as plaintiffs. Allen Sparrow was the employee. Texas Employers Insurance Association was compensation carrier and will be designated defendant. Southern Stevedoring & Contracting Company of Texas will be referred to as employer. The question for decision is: Was Allen Sparrow killed while in the course of his employment within contemplation of the Compensation Laws? The facts upon all essential particulars are undisputed. They are substantially as follows:

Sometime in October, 1935, longshoremen affiliated with the International Longshoremen's Association went upon a strike and ceased work upon the city docks at Beaumont. Thereupon the various steamship companies doing business at Beaumont incorporated themselves into what was known as the Beaumont Maritime Association, Inc. The Bull Steamship Company was a member of this Association. The stevedoring companies, of which there were a number, including Southern Stevedoring & Contracting Company, were not in any way affiliated with the Beaumont Maritime Association, Inc. The Maritime Association proceeded to contract with what was known as the Independent Longshoremen's Association Local No. 68011 to obtain laborers from this association to load and unload vessels belonging to members of the Maritime Association. Thereafter the Maritime Association brought a large number of the members of the Independent Longshoremen's Association to the city docks and made arrangements to house and feed them there. They were housed and fed in box cars or bunk houses placed upon railroad tracks along by the side of the docks. None of the persons or companies doing stevedoring had anything to do with the housing and feeding of these longshoremen. On account of conditions arising from the strike most of those connected with the Independent Longshoremen's Association remained upon the docks night and day, although they were left free to go and come at their will; and the testimony shows that about one-fifth of those belonging to that Association did go and come to the docks while doing work. For the convenience of those who did stay upon the docks the Maritime Association, through its secretary, had a telephone installed at a point on the docks near where the longshoremen were quartered. This was what was known as a public pay telephone, and those of the longshoremen who used it paid a small charge. The Southern Stevedoring & Contracting Company had nothing whatever to do with the installation or supervision of this telephone.

In the steamship business at the time in question the loading and unloading of vessels was conducted in the following manner: The steamship companies owned and operated the vessels. When necessary to load or unload a vessel, the Maritime Association, through its secretary, or occasionally the individual steamship company, contracted with some stevedoring concern to supervise the loading and unloading. This was the primary business of a stevedore. The longshoremen were the ones who did the actual labor. The Bull Steamship Company, although a member of the Maritime Association, appears to have made its own stevedoring contracts, and usually contracted with Southern Stevedoring & Contracting Company for that purpose. There were numerous other stevedoring concerns doing work upon the docks for various other steamship lines. It appears that most of the stevedoring companies drew upon the Independent Longshoremen's Association for men to do the work of loading and unloading vessels. The practice seems to have been that the steamship line or company, sometimes individually and sometimes through the Maritime Association, would contract with an individual stevedoring concern for the loading or unloading of a particular vessel. The stevedoring company would then call upon the secretary of the Independent Longshoremen's Association to furnish said stevedore with one or more crews of men, which crews would be in charge of a separate boss. One R. N. Adams acted as secretary and time-keeper for the Longshoremen's Association. The Steamship Company, upon completion of the work contracted to be done, would pay the stevedoring company the amount agreed upon. The stevedore would then pay to Adams the wages due the various longshoremen who had been employed to do the actual work. Adams would deduct the amount, if any, due by the individual longshoremen to the Maritime Association for meals during the time he was at work. He would then in turn pay to the foreman or boss in charge of each crew the aggregate amounts due such crew, and the boss of the crew would then distribute to the respective longshoremen the amounts due each. A small amount was deducted to pay expenses of the Independent Longshoremen's Association and the services of the time-keeper or secretary.

The longshoremen worked by the hour. They appear to have worked when they pleased and laid off when they pleased. They worked at different hours during the day and night. They worked for different stevedores and upon different boats from time to time. The record of work done by Allen Sparrow during the forty-eight hours preceding his death is probably representative of the method of working. Beginning at 7:15 p. m. of November 16th he worked till 8 p. m. He then began at 8:30 and worked till 12 p. m. Beginning again at 7 a. m. on the 17th he worked till 12 noon. Then beginning at 1 p. m. he worked till 6 p. m. Starting again at 8:30 he worked till 12:45 a. m. of the 18th. Beginning at 7 a. m. of the 18th he worked till 12 noon. Then beginning at 2:15 p. m. he worked till 6 p. m. He was killed about 7 p. m. of that day, as hereinafter set forth. On the 18th of November and for a number of...

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