248 F. 480 | 5th Cir. | 1918
The appellant was the claimant of the steamship Emilia S. De Perez, which was libeled by the appellee in an action seeking to recover damages for a personal injury received by him
“That it would Rave to find an opening or kink or flaw in the welded part, and it appeared perfectly sound, but when it broke open it probably rusted ball' way through; that there could be a fibrous streak in the wire, that would not be discernible without looking at it with a magnifying glass.”
Again he testified:
“That there was nothing you could see on the outside of the shackle to show there was any ilaw in the welding at all, but there was a mark of rust in one edge of it, but tho greater part of it was new.”
The appellee testified that he saw the broken clevis right after the accident; that it showed black and an old break. His witness Page testified that he saw the clevis after it was broken, and did not piece together the broken parts, but that, if it had been put back in position, he thought the hole could have been seen going through it, though he
We are not prepared to say that the District Judge erred in concluding from this testimony that the defect was one that would have been discernible by an ordinarily careful examination, especially as no such examination was made of it before the accident.
Whatever force the argument might have, as against the appellee’s right to now proceed against his employer, the Galveston Stevedore Company, we think it should be given no such effect against the right of appellee to pursue the ship, lie was concededly not employed by the ship, and could not have been benefited by any insurance the ship had taken out to protect its employés, and he made no claim against the American Indemnity Company, as insurers of tire ship or its agents, but only against the insurance taken out by the Galveston Stevedore Company to protect its employés, of whom appellee was one. The receipt taken by the American Indemnity Company recognizes this by its recitals. The^ release purports to be taken in favor of American Indemnity Company and the Galveston Stevedore Company only, so far as it applies to the Workmen’s Compensation Act. As the appel-lee was not employed by the claimant, and could not have successfully asserted a claim to insurance taken out by the claimant or his agents for the employés of the ship, and as the appellee, in fact, made no such claim, and was paid nothing on account of such a claim we do not think he is precluded from pursuing tire ship, unless, independently of the Texas act, the effect of the release was to satisfy his cause of action in full against both joint tort-feasors, the ship and the stevedore company; and appellant clainrs.it should be given that effect.
What might have been the effect of the release, if it had not been executed with the understanding of both parties to it that it was to evidence the receipt of insurance paid appellee under the Texas Workmen’s Compensation Act, we need not inquire. Its recitals show that both parties understood the Texas law to be applicable, and executed the release to carry out its terms. This being true, the release should be given no greater effect than the Texas law would, if applicable, have given to the receipt of the paymerris by the appellee. If the law had been applicable to the accident, the receipt of the stipulated insurance
The decree of the District Court is affirmed.