Warner v. Travelers Ins. Co.

• Decision Date: 25 February 1960
• Docket Number: No. 13491,13491
• Citation: 332 S.W.2d 789
• Parties: Daniel T. WARNER, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 789

332 S.W.2d 789

Daniel T. WARNER, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.

No. 13491.

Court of Civil Appeals of Texas, Houston.

Feb. 25, 1960.

Rehearing Denied March 17, 1960.

Adams & Browne, J. Melvin Franks, Beaumont, for appellant.

Barker, Barker & Coltzer, Jerry D. Barker, Galveston, for appellee.

WERLEIN, Justice.

Appellant Warner, while in the course of his employment for Todd Shipyard Corporation, sustained an eye injury. He duly filed his claim with the Industrial Accident Board of the State of Texas. The Board dismissed the claim for lack of jurisdiction and thereafter appellant filed this suit in the District Court of Galveston County to recover compensation in the total sum of $2,950 under the Workmen's Compensation Law of Texas. From the order of the District Court sustaining appellee's motion to dismiss the cause for want of jurisdiction, appellant has perfected his appeal.

Appellant asserts by his one point of error that the Trial Court erred in dismissing the case for lack of jurisdiction since it is an action brought and cognizable under the Workmen's Compensation Law of Texas and is not exclusively within admiralty jurisdiction and the Federal Longshoremen's and Harbor Workers' Act.

Appellant had been continuously employed by Todd some three months as a chipper and caulker. For about three or four weeks during that time he worked in and about his employer's plate shop on dry land chipping and caulking. During the rest of the three months he did the same kind of work on ships. At the time of his injury he was approximately 12 feet above the water, standing on a scaffold mounted on a steel barge tied to and floating alongside the S.S. Greenwich which at the time was tied to one of the piers at Todd Shipyard in Galveston and floating on navigable waters. The work being performed by appellant at such time was repair work consisting of pulling down and caulking rivets on the bow of the Greenwich outside its hull. His injury occurred about 11:30 at night after he had been on the shift since about 5:00 o'clock, and he continued to work until about 1:30 the next morning. While using what he termed a 'rough bobbin tool' in the caulking process, some foreign matter was thrown into one of his eyes, causing his injury.

It was shown that the S.S. Greenwich, which was undergoing repairs, had a gross tonnage of 7,291 tons and was an oceangoing cargo vessel engaged in regular commerce both before and after the repairs made at Todd Shipyard.

Appellant's employer carried compensation insurance covering its employees under the Workmen's Compensation Law of Texas, Article 8306 et seq., Vernon's Ann.Tex.Civ.St., and also under the Federal Longshoremen's and Harbor Workers' Compensation Act, Title 33, U.S.C.A. Sec. 901 et seq. Although appellant applied for compensation only under the State law, it is alleged by appellee in its sworn motion to dismiss this suit that appellant's employer reported the accident to the United States Employees' Compensation Commission and notified the Deputy Commissioner at Galveston, who accepted jurisdiction and so notified the employer and appellant.

In compliance with the provisions of the Federal act, appellee paid compensation to appellant in the total amount of $100.28, which was accepted by him.

The facts in this case are not complicated. Todd's contract to make repairs on the S.S. Greenwich was a maritime contract. Warner was employed as a chipper and caulker subject to being assigned to either maritime or non-maritime work. Approximately one-third of his work was in and about Todd's plate shop on dry land and two-thirds of his time was spent in working in or on ships on navigable waters. The ship was an instrument of ocean commerce floating in navigable waters. At the time of his injury, Warner was engaged in making repairs on a completed ship and his work was maritime. The injury occurred on navigable waters. The repair work was to keep the ship from leaking and hence it was directly connected with navigation and commerce on the high seas. The work was not of a local nature or of local concern. It was not incidental to any non-maritime work that appellant may have been engaged in previously.

With such a simple and not uncommon state of facts, it would seem a simple task to state the applicable law. But here we find a field of doubt, uncertainty and great confusion, dating back to Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 525, 61 L.Ed. 1086, and which more recent decisions of the Supreme Court have not lessened. Under the Jensen case, it seems clear that Warner's claim would be maritime and within the exclusive jurisdiction of the Federal act. The Supreme Court held that the work in which Jensen was engaged, that of working as a stevedore unloading a cargo from a vessel on navigable waters of the United States, and his contract of employment and his injuries were all maritime, and therefore the rights and remedies of the parties were exclusively within maritime jurisdiction. Jensen has never been overruled. Appellant asserts, however, that under more recent expressions of the Supreme Court, the present case comes within the so-called twilight zone of Davis v. Department of Labor, 1942, 317 U.S. 249, 63 S.Ct. 225, 227, 87 L.Ed. 246, in which Justice Black, speaking for the Court, stated:

'Harbor workers and longshoremen employed 'in whole or in part, upon the navigable waters' are clearly protected by this Federal Act; but, employees such as decedent here occupy that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.'

The Court continued:

'There is, in the light of the cases referred to, clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements. That zone includes persons such as the decedent who are, as a matter of actual administration, in fact protected under the state compensation act.'

It seems clear that Davis was engaged in work of a local nature not having a direct relation to navigation, and hence his case came within the undefined and undefinable twilight zone enunciated by the Court. Davis was a structural iron worker whose employer was engaged in dismantling an abandoned drawbridge spanning a navigable river. At the time of the accident he was on a barge to which steel from the bridge had been lowered for carriage to a place of storage a short distance away. He was engaged in cutting pieces of steel into proper lengths for loading and fell or was knocked into the stream and drowned.

In the instant case, Warner in making repairs to a completed vessel lying in navigable waters, was clearly engaged in work governed by maritime law, because such work had a direct relation to navigation and the injury occurred on navigable waters. The repair of an existing vessel is one of the most ancient of maritime transactions. Flowers v. Travelers Insurance Co., 5 Cir., 1958, 258 F.2d 220, and cases cited.

Appellant relies chiefly upon Emmons v. Pacific Indemnity Co., 1948, 146 Tex. 496, 208 S.W.2d 884; Indemnity Insurance Co. of North America v. Marshall, Tex.Civ.App., 1957, 308 S.W.2d 174, ref., n. r. e.; Davis v. Department of Labor, supra; Moores' Case, 1948, 323 Mass. 462, 80 N.E.2d 478, affirmed Bethlehem Steel Co. v. Moore, 335 U.S. 874, 69 S.Ct. 239, 93 L.Ed. 417; Baskin v. Industrial Accident Commission, 1949, 89 Cal.App.2d 632, 201 P.2d 549; 338 U.S. 854, 70 S.Ct. 99, 94 L.Ed. 523; Hahn v. Ross Island Sand & Gravel Co., 1959, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292, and other cases, which he asserts place appellant within the so-called twilight zone and give him a right to elect to bring his case under the State Compensation Act.

Appellee contends that the cases relied on by appellant are for the most part distinguishable from the instant case, and that under the most recent expressions of the Supreme Court and the United States Court of Appeals, 5th Circuit, the present case comes within the exclusive maritime jurisdiction.

We think this case is indistinguishable from Flowers v. Travelers Insurance Co., supra. In that case the employee was a welder making repairs on a large oceangoing tanker. The vessel was in a floating dry dock at Todd's Shipyard in Galveston harbor. While the vessel was not actually floating in navigable waters, it was there in law since it was in a floating dry dock. The Court held that 'His presence on board the ship, actively working as a welder, essential to the making of essential repairs, was nonetheless maritime even though 80% of his work was generally ashore in the plate department of the Shipyard.' The Supreme Court denied certiorari, which we understand is of no significance.

In Noah v. Liberty Mutual Insurance Co., 267 F.2d 218, the United States Court of Appeals, 5th Circuit, en banc, with Chief Judge Hutcheson and Circuit Judge Cameron dissenting, held that a longshoreman, drowned while loading a ship in the Mississippi River, was not in the Davis twilight zone, and that the Longshoremen's and Harbor Workers' Act provided the exclusive remedy. On the original hearing the Court had held that the work did fall within the twilight zone and that recovery could be had under the Louisiana Workmen's Compensation Act, LSA-R.S. 23:1021 et seq. On rehearing, however, the Court was of the opinion that Hahn v. Ross Island Sand & Gravel Co., does not go so far as to hold that a longshoreman is in the twilight zone since the effect of such holding would be to overrule by implication the Jensen case and to expand the twilight zone to the point where all amphibious workers would be in the twilight zone, contrary to the Davis case. Both Jensen and Davis were cited with approval in Hahn v. Ross Island Sand & Gravel Co., and both are still the law.

We think Emmons v. Pacific Indemnity Co., supra, is...