TJ Moss Tie Co. v. Tanner

• Citation: 44 F.2d 928
• Decision Date: 12 November 1930
• Docket Number: No. 5970.,5970.
• Parties: T. J. MOSS TIE CO. et al. v. TANNER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

44 F.2d 928 (1930)

T. J. MOSS TIE CO. et al. v. TANNER et al.

No. 5970.

Circuit Court of Appeals, Fifth Circuit.

November 12, 1930.

John N. Allen, of Mobile, Ala., Geo. W. Yancey, of Birmingham, Ala., and Edward J. Grove, of Mobile, Ala. (George W. Yancey, of Birmingham, Ala., Edward J. Grove and John N. Allen, both of Mobile, Ala., and London, Yancey & Brower, of Birmingham, Ala., on the brief), for appellants.

Alexander C. Birch, U. S. Atty., and William G. Caffey, both of Mobile, Ala. (Harry T. Smith and Wm. G. Caffey, both of Mobile, Ala., on the brief), for appellees.

Before FOSTER and WALKER, Circuit Judges, and HOLMES, District Judge.

WALKER, Circuit Judge.

This is an appeal from a decree confirming an award made by a deputy commissioner under the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 901 et seq.), in favor of the appellee Lydia Tanner, the surviving wife of Mose Tanner, deceased. The evidence showed the following: At the time (January 13, 1928) the deceased received the injury which resulted in his death, he was employed by the T. J. Moss Tie Company, one of the appellants, to stencil an identifying mark on each of a lot of cross-ties owned by the employer which had been transported in a barge to the side of the steamer Osceola to be unloaded from the barge and loaded on the steamer for shipment, the barge then being in the Mobile river alongside and east of the steamer which was moored at the east end of a pier. The object of stenciling the ties was to provide means of identifying them in the bill of lading issued for them and to enable the carrier and consignee to distinguish them from other ties that might be included in the vessel's cargo, so that proper delivery of the ties could be made at their destination. At that time a stevedoring company was engaged in unloading the cross-ties from the barge and loading them on the steamer, and was in charge of those operations, the ties being transferred from the barge to the ship by means of chain slings in which they were lifted from the barge and hoisted over the side of the ship into her hold, the slings being operated from the ship's deck by winches. The deceased's task of stenciling ties had not been completed at noon, when, upon a signal being given, work was suspended to enable the men to get their midday meal. Two of the stevedoring company's employees who were on the barge got to the deck of the vessel by climbing hand over hand by a rope which was hanging from the vessel's deck to the barge. The deceased and two or three of the stevedoring company's employees undertook to get on the vessel, which had to be crossed to get to the shore, by being lifted in one of the slings. While the sling with the men in it was swinging over the hold of the vessel, the deceased came in contact with a hatch coming, with the result that he fell in the hold and received injuries from which he died several days later. Evidence indicated that, but for the improper handling of the winch after the sling with the men in it had been hoisted above the vessel's deck, it would have been safer for the deceased, who was referred to by a witness as an "old man," to attempt to get to the vessel's deck in the way he adopted, than to attempt to do so by means of the rope which was used by two men who were "young and spry." When the work was temporarily suspended for the midday intermission, there was no way for the men on the barge to get from the barge to the deck of the vessel except by means of the rope hanging over the vessel's side or by means of one of the slings. A rope ladder belonging to the vessel was generally used by men in getting from a barge to the vessel's deck. When the men suspended work for dinner there was no ladder from the vessel to the barge, which was considerably below the vessel's deck. The deceased and his wife lived together in Mobile, Ala., from the time of their marriage in 1916, except that they went to Port Chester, N. Y., in 1923, where both of them were engaged in work for some time; but, prior to February, 1927, they returned to Mobile to live, and in February, 1927, they bought a house there; in March, 1927, because of the death of her father in Detroit, the wife went to Detroit, from which place she went to Port Chester, where she worked as a cook until she returned to Mobile in January, 1928, upon being informed of the deceased's death. The only reason for deceased's wife's going to and staying at Port Chester after her father's death was the desire of herself and the deceased to earn money to finish paying for the house they had bought. Prior to the deceased's death the wife had concluded to return to Mobile the first of February, 1928, because she and the deceased "had about got the money to pay for the home." There had been no differences between the deceased and his wife. He agreed to her going back to Port Chester to work and help pay for the house. The award was challenged on the following grounds: (1) That at the time of the deceased's injury and death the relation between him and the appellee Lydia Tanner was such that under the above-mentioned act the latter was not entitled to compensation for the former's disability or death; (2) that compensation for the deceased's disability or death was not allowable under the above-mentioned act because recovery for his disability or death through workmen's compensation proceedings could validly be provided by state law; (3) that at the time of his injury and death the deceased was not an employee for whose injury or death compensation was allowable under the above-mentioned act; and (4) that the injury which resulted in the deceased's death did not arise out of and in the course of his employment.

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