Thompson v. Eargle, 6048.
| Decision Date | 10 June 1950 |
| Docket Number | No. 6048.,6048. |
| Citation | 182 F.2d 717 |
| Parties | THOMPSON et al. v. EARGLE. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Roger M. Heyward and Douglas McKay, Columbia, S. C., for appellants.
Thomas E. McCutchen and Henry H. Edens, Columbia, S. C. (Wise, Whaley & McCutchen, Columbia, S. C., on the brief), for appellee.
Before PARKER, Chief Judge, and DOBIE, Circuit Judge, and HAYES, District Judge.
This is an appeal by the defendants from a judgment in favor of the plaintiff in an action brought in the District Court of the United States for the Eastern District of South Carolina under the provisions of 46 U.S.C.A. § 688 and 28 U.S.C.A. § 41(1) (a) now 28 U.S.C.A. § 1331 et seq., awarding damages to the father and mother of a seaman on account of their pecuniary loss in the death of their son.
The appellants concede that the sole question for review is whether under the facts of the case the death of the deceased, Carrol H. Eargle, occurred "in the course of his employment". We hold that the question should be answered in the affirmative. The appellants were engaged in the repair and strengthening of the dams of the Santee-Cooper Reservoir in South Carolina. In doing this work materials were transported by tugboats and barges. The deceased was employed as a deck hand and the crew of the tugboat on which he worked consisted of himself and two other deck hands and the Captain. It was a part of their employment to have living quarters and food on the boat. On the Saturday afternoon in question the crew quit work at 5 P.M. and left the boat, but the Captain left the deceased in charge of the boat. It was customary for some member of the crew to be on the boat at all times and Eargle was left in charge of the boat that night.
About midnight Captain Dean returned to the boat and found the deceased alone reading. Captain Dean invited his two companions, Hammock and Clapp, to come aboard. There was testimony that the four sat around and talked until 4 o'clock and decided to have something to eat. The food supply was furnished by the defendants. Hammock and Eargle started to cook some food and finding that there was no bread on the tug, Eargle went to another boat to get some bread and on returning fell into the water and was drowned.
It is conceded that Eargle was an employee on the ship and that the defendants were guilty of negligence. While it was customary to have three regular meals on the boat it was also a custom to eat whenever they were hungry. The evidence warrants the inference that Eargle was acting in obedience to the orders of the Captain of the ship by remaining on the boat that night and in preparing the meal for the Captain in connection with which he went to another boat to get a loaf of bread because there was no bread on his boat.
Under the provisions of the Jones Act, U.S.C.A. Title 46 § 688, it is provided that: "in the 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...
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