*1 awarded, $2750, injuries, amount tiff’s little, anything, was would indicate that if injuries. permanent on account of allowed rate, not be said At the amount can excessive, nor does indicate prejudice. verdict was the result of presented typical jury prob-
The facts
lem and of the we are view no error requires was committed a reversal. judgment is affirmed.
KERNER, Judge, dissenting. Circuit A. L. MECHLING LINE BARGE et al. BASSETT et al.
No. 7540. Appeals,
Circuit Court of Seventh Circuit.
May 16, 1941. Angerstein, Thos. C. Anger- Geo. W. stein, Wolff, and Charles Chicago, all of
111., appellants. Woll, Atty., Albert U. Edward S. J. Atty., Ryan, Asst. U. S. both of J. 111., Wallace, Joliet, and Robert N. 111., appellees. KERNER, Before Circuit MAJOR Judges, BRIGGLE, District Judge. MAJOR, Judge. Circuit appeal order, from an This entered 23, 1940, August plaintiffs’ dismissing com- plaint, predicated upon 21(b) Sec. Longshoremen’s and Harbor Workers’ Compensation Act, (hereinafter called the 33, U.S.C.A., “Act”). Chap. 18, Title Sec. seq., applicable 901 et made to the Dist. Columbia, 45 Stat. D.C.Code T. 33 U.S.C.A. 901 note. §§ § complaint sought to review set by Deputy aside an award Employees’ Compen- of the United States *2 Deputy the Commission, V. There behalf of of Grace was filed on in favor sation Commissioner, the of benefits also behalf for children minor Lockas and children, separate mo- Act, of the widow and minor account by -on provided the tions, substance, the to dismiss Lockas. identical in Herman death accidental of James complaint. the allegation As of to the the to material complaint, far as so The complaint mem- was a that the deceased alleged: appeal, presented on issues alleged: ber of the it de- that shows “(a) The record “ * ** appears it from the Com- Yet Lockas, em- ceased, Herman James Complaint pensation to attached said Order of was member ployed a cook as therein, D,’ incorporated as ‘Exhibit ‘Gladys employer’s towboat of crew Harry that the defendant W. Bassett. M.’ Commissioner, Deputy said found that the de- shows that record “(b) The and' Herman was a cook Lockas James Lockas, ceased, Herman James handy-man, and not a member therefore employment of his any duties performing M, Gladys but of of the crew the boat was drowned.” he at the time fell ” * * * employee plaintiff, upon Sec. predicated Paragraph (a) was by finding supported and that such provides: U.S.C.A., 3(a),,33 f presented hear- substantial at the evidence * * “* pay- shall be compensation No Deputy As ing before the Commissioner. disability death or respect of able in allegation complaint that of— death, deceased, at of his time employ- member of performing any crew not his master duties of “(1) A * * ment, Deputy Com- alleged it that the vessel “ * ** missioner, the de- found: upon Sec. predicated Paragraph (b) his death ceased Herman Lockas met Act, “The provides: J. 2(2) his em- while for ‘performing service’ injury accidental ‘injury’ means term death ployer, and that met his therefore of em- in the course arising out and death employment * in the " of his course *. ployment stated, meaning of the Act. As within complaint was attached to There appeal the order of dismissal. is from exhibits, copy application as thereto, a answer plaintiffs’ presents awk compensation, a rather record heard shown, Deputy taken and transcript of the evidence ward As situation. Commissioner, Deputy wheth as to finding before the made no Commissioner awarding order Deputy a member of crew. Commissioner’s er deceased was including “findings fact.” compensation, complaint aver positive contained the is findings portion said state The material ment that he was a member. " * * * day on said dismiss, That “and there as ment in the motion to follows: per- clearly employee herein while a member of the deceased fore not the crew” is employer upon court, forming pleader. service conclusion States, United navigable opinion, “I am waters in a memorandum stated: injury resulting-in personal sustains opinion sustained evidence employed death, gen- as a cook findings while board the towboat h,andyman on member of the eral Lockas was not a James crew ” ** * of said M’; evening ‘Gladys that on ‘Gladys afloat date, M’ was the vessel dismiss, on a motion to Thus . United States navigable waters Commissioner, finding sustained a Illinois, deceased em- Joliet, did make. which the Commissioner drowned, ployee and was overboard fell appealed The order recites that “the from in the arose out which accident complaint aforesaid fails state a cause- employment of the course of appears com of action.” It to us that the ”* * * herein, etc. plaint action stated cause of required should the defendants was no direct be noted It there however, Apparently, court to answer. a “mem- deceased was that the treated the motion to dismiss in the not a scintilla There ber of a crew.” handy- answers, and on its- general decided the case evidence to “and matter, it In this view of the he merits. found. is conceded man” as party bene difficult see how would solely either employed and ca- acted require fit which would a reversal pacity of a cook. which, plained, questions deceased fell into the water lower court decide out, again pointed apparently body decided. seen alive. His has was not recovered until weeks some three therefore will We consider *3 later. so, as doing In we shall on its merits. interesting Plaintiffs furnish an us with the found that sume legislative history pur Act for the crew, not member of the deceased was a pose upon throwing light intention by and sustained that such was Congress in its “mem use of the words indicated, District there Court. As crew,” ber of a which not deem we do dispute (1) Was questions in are two — necessary to review. of cases A number crew, and member the deceased a cited where a cook and other similar his injury (2) causing Did accidental employees be, leg to held under in course out death arise case, prior islation in the instant to requires employment? no citation his Saylor Taylor, members 4 of a crew. proposition authority in Cir., Acker, 476; 77 F. Martin v. 16 Fed. findings Deputy Commis 884, 9,155; page Cas. No. The Buena substantially sup conclusive if sioner are Ventura, D.C., 797, 799; 243 F. The Sea ported. testimony by the heard Lark, D.C., 201; 14 H. F.2d dispute. James Deputy Commissioner in is 287; D.C., Shrigley, F. Wolverton 50 support for Does it afford substantial 417, 17,932; Lacey, page 30 Fed.Cas. No. findings ultimate or conclusions about Case, 294, N.E.2d Lauzon’s 302 Mass. 19 controversy revolves? 51; Co., Dredging Kibadeaux v. Standard Barge Mechling The A. Line owned L. Cir., to 5 No is called 670. and, operated through employees, a attention, subsequent prior our either “Gladys towboat known M” which as the present has to the enactment where a cook up general towing was used in trade and been held otherwise. waterway, principally be- down the Illinois Towing In Co. v. Wrecking Dunham & tween Havana and Illinois. The 527, D.C., F.Supp. the court particular place, boat stationed in no held that an on a boat whose was continuously operation. but in principal fireman to duties were that a crew consisted (if of seven members furnished take care of the steam Master, included) deceased be —the boat, power navigation of for pilot, engineers, hands, two two deck by keeping the boiler under furnace prior deceased. January to Just fired, crew properly a member employed by under the Act. captain salary boat as a cook at a per in $100 month. such He continued Bassett, D.C., F.Supp. In Walliser employment 22, 1940, until March date employee engaged it was held an duties, of his death. duty pre- His sole towas upon yacht sailing whose were pare and serve meals to the crew. In con- chiefly necessary cooking to for do the therewith, nection required ob- crew, do the other members of and to necessary provisions tain points where necessary, any repair maintenance work slept boat docked. He on the boat a member of the crew. and, days aside from the four a month off Lawson, Maryland Casualty In Co. v. duty, to which all members of the crew 190, it was held that a entitled, were he remained on continuously who was not an articled deckhand sea- the boat. He by pilot was considered experienced sailor, or an man who was as a member of the boat’s crew and was quartered dredge, on a fed was a mem- recognized so by the Federal Social Se- ship’s company ber a member curity Administration. of the crew. The in discussing the only testimony who concerning as to cir- constituted “ F.2d, cumstances of death on 192 of 94 his fur- said: by nished year who, implied his eleven permanent old son There definite and time, the first vessel, was accompanying his with the obligation connection an father on boat. enterprise The son stated that after her pro- forward and to completed father had washing emergency, right her in the dishes tect to look kitchen, together earnings wages. to her were and her If master, deck way pilot on the subjection house she has there is where his father going to show the his commands. The him the work lights. manner, search Engineers In some ex- done is determinative. scope had their might included. their well have as sailors are cooks as well * * *» fact, background the shore.” In predi- argument crux of defendants’ upon entirely rely almost Defendants proposition. cated this We Company v. & Dock Chicago Coal South Bassett, untenable, position view that 522, a decision Cir., 104 F.2d 7 court, cir- employed cook under Supreme affirmed of this aid acting in presented, cumstances 60 S.Ct. U.S. inde- support of pur no useful It would serve L.Ed. 732. fact, pendent services such therefrom. discus analysis or pose undertake to the success- perhaps essential opinions. Whatever of these sion boat continuing operation of *4 ful and with in connection said must considered member as of other were the services Court, Supreme of the case. facts with impressed of are we the crew. Nor 544, 84 L. 260, 60 S.Ct. page on 309 U.S. a distinguish between defendants’ effort to facts appraises 732, succinctly Ed. case, and cook, instant as in the disclosed as sufficient considered court this distinc- Such a a “traditional sea cook.” Deputy Com finding of to sustain case, as logical In one no basis. tion has question employee in that missioner other, in a cook who serves continu- the crew. Su of not a member ously operation, large on in a boat be it U.S., said, page preme 260 of small, a or in or whether the river on S.Ct., L.Ed. 732: of 60 page 549 “ water, essential, if body * * of larger * is an as considered court What ship's indispensable, part com- not of the deputy com finding of supporting plement, necessary carrying on duty primary was that missioner en- navigation in which the boat facilitate flow was to the decedent gaged. fueled, he being coal vessel in mo the boat was duties had while no reading A makes the cases slept home boarded tion, at that he plain, that while numerous facts rather day as he was called each ship and off into in dis consideration been taken wanted, hourly wage. paid an longshoreman between tinguishing a may sort on harbor craft Workers of that crew, the fundamental a member posi ‘in regarded as appropriately be distinction, generally recognized, has been work longshoremen other casual tion of or permanently at whether the ” * * * water’. ers on the ship engaged navigation. to a in tached contrast, a in Pillsbury, In we have situation Dry Co. Moore Dock In the deceased’s sole case where upon by instant de- relied 100 F.2d upon actively performed a boat fendants, pointed duties were out that the em- it was continuously navigation, in engaged hourly, than ployee paid rather on boarded, he re- slept and where basis, where he ate monthly, neither a that he days except the four ship. mained at all times not slept board He was nor on other members each month he and when a of the crew. member duty, and for of the crew were off Carken, Flanagan Tex. In C. Sons& paid monthly wage. service was page 394, a Civ.App., 11 S.W.2d place much stress Defendants cited, describing in often in Chica- statement court the South distinguished longshoreman as from “ * * * case, Company go & Coal Dock He said: member of 528: hardships dan- undergo does “ * * * personal surrender gers, does he nor Longshoremen’s Act seaman in rights and liberties does contemplated body exclusion of that mem- binding to the vessel as a himself parlance who men in make common exchange right complement,' crew in for the up ship’s reg- ber who —those maintenance, care, wages flowing ularly engaged in ordinarily sea- contract to the seaman virtue navigation, faring and those whose ship.” serve such a tasks are of independent navigation scope, in their Jones, Cir., Henderson v. In such might as well have as tasks which during a deckhand 952, the decedent was shore, background their at the dock operation, when the time boat was *# #» up ship was tied he worked but when slept argued only hourly wage ate and at an the duties of de- at a happened home. The accident “independent in at ceased it was here is what were Lockas’ up, and ship was tied when the time actual duties? His sole were to sufficient duties held that the evidence prepare performed meals for the crew. He finding that decedent naviga- in no duties in cite connection with the member of crew. We towboat; consequently, tion the Dis- this same cases where footnote 2other right trict given Court was judgment and the fundamental distinction has dismissal should be recognition. affirmed. there is opinion We are Dock nothing Chicago Coal Co. in South & this dis supra, which alters fact, applied al tinction so often —in out, recognizes ready pointed that case judgment the con applies In our it. inescapable clusion the mean a member the crew within Act, ing of the that the MILK CO-OPERATIVE re WISCONSIN contrary with law. accordance *5 POOL. award Tt follows that made acting can not be enforced. OF BANK FIRST NAT. WISCONSIN There is no occasion discuss decide WISCONSIN MILWAUKEE al. et as to whether decedent’s death POOL. MILK CO-OPERATIVE out arose of and the course of em No. 7571. ployment. appealed The order from is reversed with Appeals, Seventh Circuit. Circuit Court dispose District directions May 7, 1941. conformity of the case in with the views expressed. herein KERNER, Judge (dissenting). Circuit Longshoremen’s Compensation Act only per- excludes from benefits those regularly sons who engaged in sea- faring and not those whose independent navigation. tasks etc., Wheeling, McManigal, Cir., 4 41 593; F.2d De Wald v. Baltimore & Ohio Co., 4 Cir., 810; R. 71 F.2d Diomede v. Lowe, Cir., 296; 2 Dry 87 F.2d Moore Pillsbury, Dock Cir., Co. v. 9 100 F.2d 246; etc., and South v.Co. 309 U.S. 60 S.Ct. 84 etc., L.Ed. 732. South Chicago, Co. case, supra, 309 U.S. 60 S.Ct. page 549, 84 L.Ed. it was said: “This * * * provide compensa- Act employees for a tion class of at work on navigable who, vessel in although waters * * * might be classed seamen regarded were still as distinct from mem- They persons bers ‘crew’. serv- ing vessels, sure, but their service of laborers and thus distinguished employees from those on the naturally
vessel who are primarily board to navigation.” aid her 1 Co., Co., De Cir., Wald v. Baltimore & R.O. v. Interocean S. S. 108 F.2d Cir., 810; 185; Lowe, Corp. F.2d Diomede v. Seneca Washed Gravel 296; Cir., Cir., McManigal, Hawn v. American 65 F.2d 779. Co., 999; S. S. Antus