Voris v. Eikel
| Decision Date | 17 December 1952 |
| Docket Number | No. 13953.,13953. |
| Citation | 200 F.2d 724 |
| Parties | VORIS v. EIKEL et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. G. Winters, Jr., Asst. U. S. Atty., and Brian S. Odem, U. S. Atty., Houston, Tex., for appellant.
E. D. Vickery and John R. Brown, Houston, Tex., for appellees.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
Brought by the Southern Stevedoring & Contracting Company, a partnership composed of Charles Eikel and B. D. Harris, employing stevedores, and their insurance carrier, the suit was to enjoin enforcement of an award of compensation under the Longshoremen's and Harbor Workers' Act, Title 33 U.S.C.A. § 901, et seq., entered by the defendant Deputy Commissioner on November 29, 1950, and supplemented and amended by an order of the Deputy Commissioner on March 14, 1951.
The claim was that the award was invalid because the provisions of Sec. 121 of the Longshoremen's Act, 33 U.S.C.A. § 912, had not been complied with, and the claim was barred.
The respondent, the deputy commissioner, admitting that the written notice required by the act had not been given, but invoking Subdivision (d) of the section, defended on the ground that the evidence showed, and he, as commissioner had found, under (d) (1), "that the agent of the employer in charge of the business in the place where the injury occurred had knowledge of the injury and that the employer had not been prejudiced by failure to give written notice"; and also had found "that failure of the employee to give notice in writing as provided by Sec. 12(b) is hereby excused for the following reasons."2
The district judge filed findings of fact and conclusions of law in opinion3 form, finding and holding that the record did not support the commissioner's order, and gave judgment setting aside the compensation order and enjoining the defendant deputy commissioner and the claimant from enforcing it.
Appealing from the judgment, the commissioner is here insisting: that the evidence in the record considered as a whole supports his finding that the employer had knowledge of the injury or the alternative finding that for some satisfactory reason notice could not have been given; and that either finding would support the order. So insisting, he urges upon us that the judgment must be reversed.
We do not think so. In agreement, as we are, with the views of the district judge as announced in his opinion, we shall not unduly extend this opinion. In complete agreement with his view that a liberal and reasonable construction of the act is one thing and that reading language into it which it does not contain or giving effect to it which its language does not permit is quite another, we cite, in support, Pillsbury v. United Engineering Co., 342 U.S. 197, 72 S.Ct. 223; Christensen v. United States, 2 Cir., 194 F.2d 978.
We are, too, in full agreement with his view: that congress having provided "Failure to give such notice shall not bar any claim under this act (1) if the employer (or his agent in charge of the business in the place where the injury occurred) * * * had knowledge of the injury * * *", the act means just what it says and that, to be effective, knowledge must be brought home to the owner or to his agent in charge of the business, — in this case David, — and nothing less will suffice.
It is perfectly clear to us, as it was to the district judge, that the carefully drawn language of the act is not satisfied by the showing, accepted by the deputy commissioner as sufficient, that Wisby had knowledge of the injury. He was in no sense the agent or representative in charge, for the stevedores, of the work of unloading the ship. He was not even a regular employee of theirs. An official of the union at the hiring hall and its representative in connection with this job, he had no connection with the stevedores except the casual one of gang pusher or walking foreman on this particular job.
Finally, we agree fully with the district judge that the statute, providing as an alternative to knowledge of the owner or his agent in charge that if the deputy commissioner excuses the failure to give notice "on the ground that for some satisfactory reason such notice could not be given" the "Failure to give such notice shall not bar any claim", did not invest the commissioner with unlimited and unguided power to excuse or refuse to excuse. On the contrary, it set up a standard conformable to right reason to which, considering the primary purpose of Sec. 12 of the act in requiring prompt notice and presentation of claim, the reasons put forward by the deputy commissioner as satisfactory must reasonably conform.
The reasons given by the deputy commissioner as satisfactory reasons why such notice could not have been given in this case are not, under the statute, reasons at all. They are mere excuses on grounds which the statute does not define as excuses. If accepted in this and similar cases, they would largely nullify Sec. 12, making it unnecessary to file a written notice or to bring home knowledge to the employer or his agent in charge, or for the deputy commissioner to furnish satisfactory reasons for excusing the failure to give notice. They would do this by writing into the statute exceptions from its provisions in favor of employees who: (1) were illiterate; (2) were not regular longshoremen; (3) had worked only a short time; (4) were not acquainted with the requirements about reporting; (5) had reported to their immediate gang pusher; and (6) might fall into any other categories which the deputy commissioner would from time to time invent or devise in further nullification of the statute. In short, the acceptance of these and similar reasons put forward by a deputy commissioner as satisfactory would rewrite the statute to give the deputy commissioner arbitrary power according to his whim or caprice to excuse or refuse to excuse.
We are sure that the congress had no intention to clothe the deputy commissioner with such power. In the absence of language compelling such a construction, no court would be justified in imputing such an intention to the Congress. In the presence of language such as this statute contains, we think no court could fairly impute such intention to the congress or properly give the statute such effect.
While, of course, the decisions of the Texas courts under the somewhat analogous provision in the Texas Workmen's Compensation Act, excusing for "good cause" the failure to file claim within six months, are not authoritative, they are persuasive. Though the words "good cause" are not otherwise defined in the statute, the Courts of Texas have assigned to these words a clear and regular meaning. Under their authoritative decisions,4 it is the settled law of Texas that the "good cause" contemplated by the statute means such cause as would be considered a reasonable excuse for not filing the claim by a man of ordinary prudence who is reasonably mindful of his own interests. Ordinarily the existence of good cause is a question of fact to be determined by the jury, but where the undisputed evidence reflects a state of facts about which the minds of reasonable men cannot differ, it is a question of law.
Leslie Lovely, the gang foreman, and Ernest Wisby, the walking foreman, each testified that he had actual knowledge of the claimant's injury on the night that it occurred. Irrespective of the manner and duration of their employment, both Lovely and Wisby were then employees of the Southern Stevedoring & Contracting Company, and it was responsible for their acts and omissions within the scope of their employment the same as if they had been selected without the aid of a union and their duties were to extend over years. Wisby was the man who hired Earl Porter, the claimant. He was in charge of the gang of longshoremen, directed them in their work and exercised general supervision over them. He was the person who paid off the men for the employer and was the only representative of the employer known to the claimant.
Wisby testified:
Tarpey, the timekeeper, denied that Wisby reported the claimant's injury to him, but further testified that it was Wisby's duty so to do:
Mr. David, the man conceded by the employer to be its agent in charge of unloading the ship, testified:
Mr. Harris, one of the employer partners, testified: * * *."
When the undisputed evidence establishes both that knowledge of the claimant's injury was brought home to the foreman,...
To continue reading
Request your trial
-
Atlantic & Gulf Stevedores, Inc. v. Donovan
...text. 16 33 U.S.C.A. § 930(a), (e) & (f). 17 33 U.S.C.A. § 907(a). See Eikel v. Voris, D.C.Tex.1951, 101 F.Supp. 963, affirmed 5 Cir., 1952, 200 F.2d 724, reversed on other grounds 1953, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5. 18 Compensation is not allowed for the first three days' disabili......
-
Nardella v. Campbell Mach., Inc.
...statute may be disregarded under the guise of interpreting it liberally." Eikel v. Voris, 101 F.Supp. 963, 966 (S.D.Texas 1951), aff'd, 200 F.2d 724 (5thCir.1952), rev'd on other grounds, 346 U.S. 328, 74 S.Ct. 88, 98 L.Ed. 5 (1953). Here, the record demonstrates that petitioner failed to c......
-
Voris v. Eikel
...his decision and enjoined further payments, 101 F.Supp. 963. The Court of Appeals for the Fifth Circuit affirmed by a divided court, 200 F.2d 724. This Court granted certiorari to review the interpretation of the statute. 345 U.S. 955, 73 S.Ct. The facts as disclosed by the record and found......
- Capital Transp. Co. v. Armour & Co.