Opinion
Writ of error refused November 11, 1925.
May 13, 1925.
Appeal from District Court, Galveston County; J. C. Canty, Judge.
Action by Nina H. Crawford and others against the Southern Surety Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.
Stewarts and Brantly Harris, both of Galveston, and A. J. De Lange, of Houston, for appellants.
Frank S. Anderson, of Galveston, for appellees.
Appellees, as the heirs and beneficiaries of Geo. Y. Crawford, who was drowned by the capsizing of the ill-fated dredge boat Houston in Texas City channel August 17, 1915, recovered judgment herein against appellants on their policy of insurance to the Standard American Dredging Company for the benefit of its employees, whereby they agreed with the latter to pay to the proper representatives of any of its employees who suffered death while in the course of employment for it, as Crawford did, the benefits and compensation specified in the Texas Compensation Law of 1913 (Vernon's Ann.Civ.St. Supp. 1918, arts. 5246 — 1 to 5246 — 91.
Appellants, conceding that the recovery was proper under the pleadings and proof if the trial court had jurisdiction of the cause, assail the judgment on the sole ground that the controversy was one exclusively within the admiralty jurisdiction of the federal courts, and seek a decree here so declaring.
We cannot accord it, regarding the question foreclosed in this court by its decision the other way in Southern Surety Co. v. Stubbs, 199 S.W. 343, and by its present conclusion, after careful reconsideration of the matter, that no sufficient reason has been assigned for overturning that holding. The same happening and policy of insurance gave rise to both cases, Stubbs and Crawford going down together as fellow employees on the dredge boat Houston, and being alike covered by the insurance their employer had so taken out with appellants. The conclusion arrived at in the Stubbs Case was thus epitomized:
"As is elsewhere herein stated, this was not a suit in personam against the owner of a vessel to recover either upon a contract, or for damages for a maritime or other character of tort, but was upon an insurance contract against an insurer, who voluntarily and for a valuable consideration assumed the obligation to pay compensation to the employé or his beneficiaries, upon the happening of an accidental injury while in the course of his employment, and who received the benefits of that contract in the premiums paid it for carrying the risk. We therefore think that, in these circumstances, its claim that appellees mistook their forum cannot be availed of."
Neither do we think the case of Southern Pacific v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C, 451, Ann.Cas. 1917E, 900, which we formerly reviewed, nor the subsequent ones now first cited, such as Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, 11 A.L.R. 1145; Grant, etc., Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Chelentis v. Luckenbach, 247 U.S. 372, 38 S.Ct. 501, 62 L.Ed. 1171; State, etc., v. Nordenholt Corporation, 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933, 25 A.L.R. 1013; Peters v. Veasey, 251 U.S. 121, 40 S.Ct. 65, 64 L.Ed. 180; Clyde S. S. Co. v. Walker, 244 U.S. 255, 37 S.Ct. 545, 61 L.Ed. 1116; Great Lakes, etc., Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756 — upon all of which appellants rely, hold to a contrary doctrine when applied to a parallel state of facts with those that rule the cause at bar.
Here, under the unquestioned findings of the trial court, the dredge was not a seagoing vessel, nor even self-propelled, but had to be towed everywhere; nor was it at the time of this casualty mediately or immediately engaged in navigation or commerce as such of any nature, being then located up in the Texas City channel in Galveston bay within Galveston county, Tex., and actively at work dredging the channel at that local point.
Appellants were insurers doing business in Texas, being authorized under our 1913 Workmen's Compensation Law to insure payment of the benefits therein designated to injured employees (and their representatives in case of death), and, in the regular course of such business, the statute being a noncompulsory one for all concerned, voluntarily did so in this instance by directly contracting with the deceased's employer to pay those prescribed amounts for the benefit of the appellees, in the event of just such an occurrence as actually ensued.
Accordingly, the appellees' suit is neither one between the employer and employee, nor is it a proceeding against the vessel or its owners, but in its controlling features — while the pleadings contain other counts — is simply a common-law action upon a policy of insurance issued between others for the benefit of the appellees as third parties, having direct reference to the Texas compensation statute, and concerning an employment sustaining no direct relation to commerce of any sort, being essentially local in character.
The situation thus outlined differentiates this case from those cited as promulgating a different rule. Whatever may be the varying states of fact to which they may or may not be applicable, and manifestly the exigencies before this court do not require it to trace a line of continuity of decision through them, the gist of the holdings referred to is to reaffirm and to further develop the doctrine of the Jensen Case to the effect that, in such circumstances as here obtain, the jurisdiction of the state courts, if not itself exclusive as having to do with a subject-matter not maritime in character, is at least concurrent with that of the federal courts, the parties here having voluntarily — to quote from Grant, etc., Ship Co. v. Rohde, supra, a declaration of the United States Supreme Court — "contracted with reference to the state statute; their rights and liabilities had no direct relation to navigation, and the application of the local law cannot materially affect any rules of the sea whose uniformity is essential."
It would merely be a work of supererogation to specifically refer to the reiterated declarations of our highest court to the same effect in a number of the other cases cited, notably in Grant, etc., Ship Co. v. Rohde and State Industrial Commission v. Nordenholt.
The fact that the dredge was a floating one on navigable waters does not take this casualty out of the operation of the principle applied to these authorities, because the employment here — that of a deckhand on a non-self-propelled boat engaged in the improvement of a Texas inland harbor channel, even if maritime at all, is yet within their meaning, to be deemed of such a local nature as not to materially affect any rules of the sea whose uniformity is essential, and therefore cognizable by the state courts. The Lottawanna, 21 Wall. 558, 581, 22 L.Ed. 654; Leisy v. Hardin, 135 U.S. 100, 119, 10 S.Ct. 681, 34 L.Ed. 128; Hoof v. Pac. Amer. Fisheries (C.C.A.) 279 F. 367; The Richard Winslow, 71 F. 426, 428, 18 C. C. A. 344; Millers' Indemnity Underwriters v. Boudreaux (Tex.Civ.App.) 245 S.W. 1025; Id. (Tex.Com.App.) 261 S.W. 167; Lum. Recip. Ass'n v. Adcock (Tex.Civ.App.) 244 S.W. 645; Grant, etc., Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008.
While the subject is an interesting one, and its further pursuit might redound to the intellectual pleasure of the members of this court, the indulgence is foreborne, since the conclusions given are thought to determine the merits of the appeal.
The judgment of the court below has been affirmed.
Affirmed.