Opinion
No. 6587.
February 1, 1932.
On appeal from the District Court of the United States for the Central Division of the Southern District of California; George Cosgrave, Judge.
See, also, 52 F.2d 686.
Samuel W. McNabb, U.S. Atty., and Dorothy Lenroot Bromberg and Ignatius F. Parker, Asst. U.S. Attys., all of Los Angeles, Cal., for appellant.
Farnham P. Griffiths, Charles E. Finney, George E. Dane, and McCutchen, Olney, Mannon Greene, all of San Francisco, Cal., for appellees.
Bogle, Bogle Gates, Lawrence Bogle, Stanley B. Long, Grosscup Morrow, W. Carr Morrow, and John Ambler, all of Seattle, Wash., amici curiæ for Seattle Waterfront Employers.
Wood, Montague Matthiessen, Erskine Wood, and Gunther F. Krause, all of Portland, Or., amici curiæ for Portland Waterfront Employers.
Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.
This case is affirmed, with modification as hereinafter noted, on authority of Marshall and Winkler v. Mahony Co. et al. (C.C.A.) 56 F.2d 74, decided this day, and for the additional reason that the facts in the instant suit disclose that there was no employee of the same "class" who had worked "substantially the whole" year, etc., whose earnings could be used as a standard for computing appellant's compensation under 33 USCA § 910(b). Accordingly, computation under subsection (b) was clearly "unfair" and "unreasonable," if not mathematically impossible.
The additional argument of the appellant herein, however, to the effect that the District Court erred in entering a decree for the refund of excess payments made to the applicant under the award of the deputy commissioner, is sound. There is nothing in the record, including the pleadings, to justify the court in entering that portion of the decree. We therefore hold that the last paragraph of the decree should be stricken.
With this modification, the decree is affirmed.