AVONDALE MARINE WAYS, Inc. v. HENDERSON et al. (two cases).
Nos. 14055 and 14056.
United States Court of Appeals Fifth Circuit.
Jan. 29, 1953.
437
If every fact alleged had been proven as alleged, no case entitling her to the relief sought would have been made out.
While it is true that the action was equitable, it is well settled that equity will, in a case like this, follow the law.3 Especially will it enforce the Florida Statutes of Limitation of Four Years
Finally, we think it clear that the case as pleaded presents a stale demand which equity will not entertain or enforce. Though plaintiff‘s husband lived for five years after the instrument complained of was executed, she made no complaint of, took no action to obtain relief from, it during his life time while he was still available as a witness. Further, after waiting eight years more, she comes into court alleging no reason for her failure to proceed earlier except her continuing strong desire to do as he wished her to do and her equally strong aversion to going contrary to his wishes, and none for undoing at this late date what had been deliberately done by three members of a loving and united family acting in concert more than thirteen years before. C/o Ruch‘s Estate, Fla., 48 So.2d 289.
The inexcusable delay which has marked this case both in its filing and in its prosecution furnishes, we think, complete justification not only for dismissing the suit but for dismissing it without leave to amend.
While the rules do enjoin liberality in granting amendments, their granting is within the sound discretion of the trial judge. The record in this case showing that the suit was not only greatly delayed in its filing but also greatly delayed in its prosecution for two years more, we find nothing in the record to indicate that that discretion was abused.
The judgment was right. It is affirmed.
Herbert P. Miller, Dept. of Labor, Washington, D. C., G. Harrison Scott, Asst. U. S. Atty., New Orleans, La., John N. McKay, U. S. Atty., New Orleans, La., (William S. Tyson, Solicitor of Labor, Ward E. Boote, Assistant Solicitor and James E. Hughes, U. S. Dept. of Labor, Washington, D. C., of counsel), for appellee.
Before HUTCHESON, Chief Judge, and STRUM and RIVES, Circuit Judges.
HUTCHESON, Chief Judge.
Filed under the provisions of the Longshoremen‘s Act of March 4, 1927,1 these suits were brought to enjoin and set aside as not in accordance with law, compensation orders issued by the deputy commissioner in favor of the dependents of two of appellant‘s employees who had been killed in an explosion2 on a barge upon which they were working.
The claim of appellant was that the place where, and the circumstances under which, the injuries occurred are such that the Louisiana State Compensation Act,
The commissioner, as vigorously contending that a marine railway is a dry dock within the meaning of the Act, filed a motion for summary judgment.
The district judge, on the authority of two cases decided by this court, Continental Casualty Co. v. Lawson, 5 Cir., 64 F.2d 802, and Maryland Casualty Co. v. Lawson, 5 Cir., 101 F.2d 732, granted the motion and entered judgments dismissing the suits with costs.
Here seeking their reversal, appellant concedes that the decisions of this court, on which the district judge, relies, do support the judgments. It insists, however, that these cases were wrongly decided; that they have been in effect overruled by later decisions of the Supreme Court; and that this court should now disavow them.
We cannot agree with these views. Quite to the contrary, we are of the clear opinion that the cases were when decided well decided; that no case since decided furnishes any sound basis for a different view; and that many cases which have been decided since3 have given the questioned decisions full support and approval.
The judgments appealed from were rightly entered. They are affirmed.
RIVES, Circuit Judge, dissenting.
This accident occurred over dry land some four hundred feet from the water‘s edge. That part of the marine railway on which the ship rested differed from a drydock in the respect upon which the Longshoremen‘s Act turns in that it was not in or over navigable waters. The Jones Act is amphibious. O‘Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42, 63 S.Ct. 488, 87 L.Ed. 596. The Longshoremen‘s Act, on the other hand, is restricted to compensation for injuries occurring on navigable waters. Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045. We have here the reverse of the situation presented in Nogueira v. New York, N. H. & H. R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754, and Pennsylvania R. Co. v. O‘Rourke, U.S., 73 S.Ct. 302, 305, in which it was held that the extension of a railroad on to a boat in navigable waters did not carry with it the Federal Employer‘s Liability Act. Here it seems to me that the extension of the marine railway to a point some 400 feet ashore did not carry with it the Longshoremen‘s Act. The case of Pennsylvania R. Co. v. O‘Rourke, supra, makes plain that the Act “is directed at the employer when it speaks of maritime employment, not at the work the employee is doing.” As in the case of a longshoreman injured on a dock while engaged in unloading a vessel, State Industrial Commission of State of N. Y. v. Nordenholt Corporation, 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, the simple distinction that must be maintained, I think, is between injuries on land and those suffered upon navigable waters.
Further, “Congress made clear its purpose to permit state compensation protection whenever possible“. Davis v. Department of Labor and Industries, 317 U.S. 249, 252, 253, 63 S.Ct. 225, 227, 87 L.Ed. 246; see Parker v. Motor Boat Sales, 314 U.S. 244, 249, 250, 62 S.Ct. 221, 86 L.Ed. 184. Ashore is the natural habitat of the State compensation acts, and it seems to me that the Longshoremen‘s Act cannot survive on land. I, therefore, respectfully dissent.