United Dredging Co. v. Lindberg

• Decision Date: 06 April 1927
• Docket Number: No. 4942.,4942.
• Parties: UNITED DREDGING CO. et al. v. LINDBERG et al.
• Court: U.S. Court of Appeals — Fifth Circuit

18 F.2d 453 (1927)

UNITED DREDGING CO. et al. v. LINDBERG et al.^*

No. 4942.

Circuit Court of Appeals, Fifth Circuit.

April 6, 1927.

Maco Stewart and Brantly Harris, both of Galveston, Tex., for plaintiffs in error.

H. C. Hughes and W. E. Price, both of Galveston, Tex. (Lockhart, Hughes & Lockhart, of Galveston, Tex., on the brief), for defendants in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is an action at law under the Workmen's Compensation Law of Louisiana (Act No. 20 of 1914), in which the minor children of Carl Lindberg, deceased, by their next friend, sued in a state court of Texas to recover for the accidental death by drowning of their father, during the course of his employment as assistant engineer of a dredgeboat. The defendants were the United Dredging Company, owner and operator of the dredgeboat, and the Southern Casualty Company, surety on the Dredging Company's bond. The plaintiffs were citizens of Texas, and the defendants were corporations under the laws of other states. The damages were laid at $6,000, and because of diversity of citizenship the case was removed to the federal District Court for the Southern District of Texas. 15 F.(2d) 54.

The petition was demurred to on the grounds (1) that the cause of action was within the exclusive jurisdiction of the admiralty law; or, if this were not so, (2) that the liability asserted could not be enforced elsewhere than in a state court of Louisiana. The demurrer was overruled, and a trial was had before the District Judge without a jury. The facts are not in dispute:

The Dredging Company had a contract to dig a navigable canal from the Sabine river, on the boundary line between Texas and Louisiana, to Lake Charles, in Louisiana. In pursuance of that contract its dredge was cutting a canal across land, and was kept afloat by water which filled up the canal as it was cut. Lindberg was second engineer on the dredgeboat, and while acting as such the engine room became so hot and close that he went up on deck to cool off. He sat down on one of the bitts located about amidships along the side of the dredgeboat, where he remained some time, probably an hour, and until an oiler came up and asked him what he was doing there. Lindberg, when discovered by the oiler, was sitting in a leaning position, with his head resting on his hands, and when accosted raised up and immediately fell overboard. The oiler testified that Lindberg's appearance indicated that he was sick, and that he did not seem to go overboard voluntarily. The engines were stopped, and a search was made for Lindberg's body, but it was not found. The District Judge entered a judgment for the plaintiffs.

Defendants assign error, and contend that the demurrer should have been sustained, and that the evidence was not sufficient to show either that Lindberg's death was due to accident, or that it occurred in the course of his employment.

In our opinion, the demurrer was not sustainable on the first ground. The kind of work that was being done at the time of Lindberg's death was well described by the District Judge as follows: "While there was deep water around the dredge, and the channel she was digging was intended to be navigated when finished, she was in fact merely eating her way over land * * * to create a navigable channel." That maritime jurisdiction in such a case as this is not prejudicially interfered with by the statute in question was held by the Supreme Court in Millers' Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470. In that case a diver died of suffocation in the navigable waters of the Sabine river while he was engaged in sawing off submerged timbers, which had become an obstruction to navigation. That was a stronger case than this upon which to base a claim of exclusive maritime jurisdiction. But, in affirming a judgment in a suit under the Workmen's Compensation Law of Texas (Vernon's Ann. Civ. St. 1925, art. 8306 et seq.), it was said: "The matter is of mere local concern, and its regulation by the statute will work no material prejudice to any characteristic feature of the general maritime law."

On principle, the other ground of the demurrer seems to be equally untenable. The rule that the statute of one state will be enforced by courts outside that state should be applied to Workmen's Compensation Laws, unless some insuperable obstacle is presented. The Louisiana...