Westman's Case

• Citation: 106 A. 532
• Parties: WESTMAN'S CASE
• Decision Date: 30 April 1919
• Court: Supreme Judicial Court of Maine (US)

106 A. 532

WESTMAN'S CASE

Supreme Judicial Court of Maine.

April 30, 1919.

Appeal from Supreme Judicial Court, Cumberland County, at Law.

Proceeding for compensation under the Workmen's Compensation Act for death of Fred G. Westman, the employe, by Mabel C. Westman, his widow, against a towboat company and its insurer. Compensation was awarded, the award affirmed by the justice of the Supreme Court, and the employer and insurer appeal. Appeal dismissed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, and DEASY, JJ.

Frederic J. Laughlin, of Portland, for applicant.

H. S. Avery, of Boston, Mass., for defendant.

Carroll B. Skillin and Edward H. Wilson, both of Portland, for London Guarantee & Accident Co., Limited.

PHILBROOK, J. This is a proceeding instituted by the dependent widow of Fred G. Westman to recover compensation under the terms and conditions of the statute commonly known as the Workmen's Compensation Act.

At the time of his fatal accident the deceased was employed by the defendant towboat company as a cook on its towboat Portland. By the terms of his employment he performed all the duties of cook on the boat, had full authority to buy, and was charged with the duty of buying, all supplies necessary to that work, and, when required, assisted around the deck. The accident occurred at about noon, on the 16th day of February, 1918, when the Portland was lying in a dock. The boat was moored to a coal lighter, which, in turn, was moored to the wharf. Between these two crafts and the head of the dock was lying another lighter, which was also moored to the dock. This lighter was in charge of A. P. Bennett, a witness in the case. On the outside of the second lighter was moored another towboat, and outside the latter was moored still another towboat. The distance from the edge of the wharf to the surface of the water was estimated to be nine or ten feet. On the fatal day, having served dinner to the crew and partaken of his own midday meal, Westman went to a neighboring store to buy supplies. Taking two or three purchases under his arm, he started to return to the boat, being observed to pass along the dock toward his destination, and thus, for the last time, was seen alive. Mr. Bennett, who was on board his lighter, says he heard a thump thereon, followed by a splash. Upon making investigation he saw the unconscious body of Westman in the water between the ends of the two lighters, called for assistance, and the body was taken to the dock. Resuscitation was attempted, but without avail. Westman was dead.

Proper steps were taken to present the claim of the plaintiff to the chairman of the Industrial Accident Commission. He sustained the claim, and ordered payment of the compensation provided by statute. This finding and order, following the practice provided in such cases, was presented to a justice of the Supreme Court, who rendered a decree in accordance therewith, and from that decree the defendants bring the case before us by appeal. Defendant's Contentions.

(1) That the deceased employe was a seaman on a vessel engaged in interstate and foreign commerce, and therefore his dependent widow is not entitled to the benefits of the Workmen's Compensation Act.

(2) That the burden of proof is upon the petitioner to show by the preponderance of the evidence that the injury arose out of and in the course of the employment, and that, failing to establish the burden of proof, the petitioner cannot recover.

(3) That there is no evidence on which the commissioner was warranted in finding as a fact that the injury arose out of, and in the course of, the employment; that such a finding of fact on the evidence presented could he mere conjecture only, and that the evidence most favorable to the plaintiff was as consistent with the injury arising in such a manner as not to be compensatable as to be in such a manner as to be compensatable.

First Contention.

As the basis of their first contention the defendants call attention to R. S. c. 50, § 1, par. 2, which provides that "masters of and seamen on vessels engaged in interstate or foreign commerce" are excluded from the classes of employes who are entitled to the benefits arising under the Compensation Act. The reasons for this statutory exclusion, evidently growing out of the maritime law and the jurisdiction of admiralty courts over maritime torts, are not in issue, so that a discussion of this most interesting subject would be without justification or merit at this time. Nor is the jurisdiction of the state tribunal over the instant case denied, a jurisdiction which the Judicial Code (Act Cong. March 3, 1911, c. 231, 36 Stat. 1160) § 256, as amended by Act of Congress October 6, 1917, c. 97, § 2, 40 Stat. 395 (U. S. Comp. St. 1918, § 1233), confers in behalf of those who claim "the rights and remedies under the workmen's compensation law of any state." But the defendants read the excluding clause literally, and thereunder claim immunity from liability. Therefore the first question presented to us is whether at the time of his fatal accident the deceased was a seaman on a vessel engaged in interstate or foreign commerce, under the terms of the Compensation Act, when properly construed. The record discloses that the towboat Portland, on which Westman was employed as we have stated, was duly registered at the proper United States customs house; that the range of her license was from Eastport to Cape Cod; that her towing duties consisted in going wherever her orders called her to go, within the range of her license; that the greater part of her work was in Portland harbor; that at the time of the accident she was not engaged on any job, but was lying at the dock.

Defendants contend that, under these conditions of registry, license, and breadth of duties, this towboat is to be regarded in general terms as a vessel engaged in interstate and foreign commerce. They even claim that her principal business was aiding and facilitating such commerce, although we cannot concede that the record substantiates this claim. They urge that the true question for determination is whether this vessel was one generally engaged in interstate and foreign commerce, and not whether she was so engaged at the time of the accident. They say that, without the more permanent classification as to the character of the vessel's employment, there would arise frequent confusion and uncertainty as to the rule applicable under the Compensation Act, because the employe might at one moment be engaged in interstate and foreign commerce and otherwise at another moment. According to the great weight of authority, however, the test must be applied to the conditions actually existing at the time when the accident occurred.

In N. Y. C. & H. R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298, Mr. Justice Lamar said:

"Owing to the fact that during the same day railroad employees often and rapidly pass from one class of employment to another, the courts are constantly called upon to decide those close questions, where it is difficult to define the line which divides the state from interstate business. * * * Each case must be decided in the light of the particular facts with a view of determining whether at the time of the injury the employe is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or a necessary incident thereof."

This opinion, it should be observed, was given in an action brought under the Federal Employers' Liability Act, and not under a Workmen's Compensation Act; but we hold that the same rule should apply to actions brought under either act. Other cases in which the same rule is applied are Shanks v. Delaware, Lackawanna & Western Railroad, 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Erie Railroad Co. v. Jacobus, 221 Fed. 335, 137 C. C. A. 151; Illinois Central R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, and cases cited in Ann. Cas. 1914C, 163.

In Morrison v. Commercial Towboat Co., 227 Mass. 237, 116 N. E. 499, a case arising under the Massachusetts Workmen's Compensation Act, the court was considering the claim of a master of a towboat, and discussed the same excluding clause as that now before us. In that case sometimes the boat was engaged in towing barges from Boston docks to a point down the harbor where ocean-going tugs took them and towed them to ports in other states. Sometimes the boat was employed in work wholly within the harbor, and in no way connected with or similar to that just above described. When engaged in moving barges as the initial part of their interstate voyage the court held that the exclusion of the statute applied, but further said:

"As the towboat on which the plaintiff was master plied only within the limits of Boston Harbor, it may be assumed that at times it was engaged in work that plainly was of intrastate character. The decisive question in this case is, was the towboat Hersey engaged in interstate commerce, within the meaning of the statute, at the time when the plaintiff was injured."

So it will be seen, in the case just referred to, that the decision turned upon the nature of the work in which the towboat was engaged at the very time when the employe was injured, and not upon the general character of the work done by the towboat, or whether a greater or smaller part of that work was interstate or intrastate.

Under the facts of the case at bar, hereinbefore briefly stated, and more fully set forth in the record, we have no hesitation in declaring that Westman, at the time of his fatal accident, was not a seaman on a vessel engaged in interstate or foreign commerce, and it must follow that the first contention of the defendant fails.

Second Contention.

It is undoubtedly true, and has been frequently so held, that the burden of proof rests upon the claimant to prove the...