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may be entitled to receive or as the circum-1 It appears from the complaint as amended stances of the case may justify."

that the death of the employé resulted proxi. Outlaw & Kilborn, of Mobile, for appellant: mately from the accident within three years;

Smiths, Young, Leigh & Johnston, of Mo- and that he left a widow and two dependent bile, for appellee.

children. The compensation under these cir

cumstances should be paid to the widow, MILLER, J. This is a suit by Eva J. without an administration of the estate of Havard against G., M. Rosengrant, doing the decedent, for the benefit of herself and business under the name of Riverside Manu- the two dependent children. No necessity for facturing Company, under the Workmen's an administration of the estate existed under Compensation Act, to recover compensation the facts averred in the complaint. thereunder for herself and two children, When the three above-mentioned sections Fritz R. Havard, Jr., aged eight, and Ralph of the act are read and construed together, Havard, aged six, for the death of Fritz R. and are applied to the facts stated in the Havard, an employé of the defendant, hus- complaint, it is evident that the plaintiff, the band of plaintiff, and father of the two chil- widow of decedent, is the proper party to dren.

maintain this suit. This was clearly the inThe plaintiff secured an order of the court tent of the act under the facts appearing in authorizing her under section 7 of the act the complaint. Section 1, p. 206, and section to employ an attorney for the purpose of 14, subds, 4, and 7, p. 218, Workmen's Com. proceeding against the defendant under sec- pensation Act (Gen, Acts 1919, p. 206); Ga. tion 28 of the act (Gen. Acts 1919, p. 206), Casualty Co. v. Haygood, 210 Ala. 56, 97 and filed her complaint to recover compen-South. 87, headnote 3. sation, as provided by the Workmen's Com- The facts averred in the amended compensation Act. The defendant demurred to plaint show that Havard, the deceased emthe complaint, which demurrer sus-ployé, was a lumber inspector and grader, tained. The complaint was amended; de- and was employed in that capacity by the murrers to it as amended were filed by the defendant, and he was performing his duties defendant, and they were sustained by the under such employment when the accident court. On the same day the court refused occurred which caused his death. The dethe motion of plaintiff, theretofore filed, to fendant was operating a lumber yard and fix a day to hear her suit. The plaintiff de- planing mill,' located on the bank of Mobile clined to plead further, and the court then river, in the city of Mobile, and was regurendered judgment in favor of defendant and larly receiving shipments of lumber by barg. against plaintiff, dismissed the cause, and es at the wharf in front of his mill. The taxed plaintiff with the court costs.

barges were towed to the wharf by tugs. No evidence was taken, and the case is be- The defendant was employing regularly more fore us on the record proper by certiorari. than 16 men, and had elected to become sub

Was this suit properly brought by the ject to part 2 of the Workmen's Compensa. plaintiff, the widow of the deceased employé, tion Act with relation to the men under his for the benefit of herself and the two chil- employment. The amended complaint also dren of the decedent? It is true that sec- alleged that the deceased and the defendant tion 1, pt. 1, of this act (Gen. Acts 1919, p. were subject to part 2 of the act at the time 206), states

of the death of this employé, and it states “He (meaning employé), or in case of death, the average weekly earnings of the employé. his personal representative, for the exclusive Section 5 of the amended complaint reads as benefits of the surviving spouse and next of kin, follows: shall receive compensation by way of damages

"That about 1:30 p. m. on, to wit, the said therefor from the employer."

24th of August, 1922, while the said Fritz R.

Havard, in the usual course of the said business But section 14, subd. 4, p. 218, of the act, of his employer, the defendant, was sitting or reads:

standing upon a laden schooner moored in Mo"In death cases, where the death results bile river alongside of a barge, which in turn proximately from the accident within three

was moored in Mobile river to the dock or years compensation payable to dependents shall wharf at the defendant's said plant, and was be computed on the following basis and shall engaged for his said employer in grading and/or be paid to the persons entitled thereto with - tallying lumber then being unloaded from said out administration."

barge, and from thence carried or carted into

the yard or mill of defendant's said plant, he Section 14, subd. 7, p. 218, of this act, was injured and came to his death as the pror reads:

imate result of an accident arising out of and in

the course of his said employment by the de"If the deceased employee leave a dependent fendant in this: That, while the said Fritz widow

and either two or three de- R. Havard was sitting or standing on said pendent children, there shall be paid to the wid- schooner, engaged in the business of his emow for the benefit of herself and such children ployer as aforesaid, a tug boat was standing fifty per centum of the average weekly earn- close by, waiting for the purpose of towing ings of the deceased."

away the said barge from which Fritz R. Ha

vard was grading and/or tallying lumber, as These sections must be examined and inter- aforesaid, as soon as its unloading should be preted together.

completed or for the purpose of towing or mor

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(100 So.) ing otoer barges tied near defendant's said plant, formance of a maritime service. We entertain and from which lumber had been or was about no doubt that the service in loading and stowto be unloaded into said plant, and that while ing a ship's cargo is of this character. Upon said tug boat was so standing by a pistol or its proper performance depend in large measure rifle, being handled or cleaned thereon by a the safe carrying of the cargo and 'the safety of negro whose name is unknown to claimant, but the ship itself; and it is a service absolutely who was then and there the master or a mem- necessary to enable the ship to discharge its ber of the crew of said tug, accidentally explod- maritime duty." ed or was accidentally fired, and the ball or bullet therefrom struck the said Fritz R. Havard The same reasoning will apply to tallyin the head, wounding him so badly that within, | ing and grading lumber by a person standto wit, a very few hours he died."

ing on a barge located in a navigable stream

- Mobile river-while it is being unloaded It appears on the face of the amended com- and carried into the defendant's mill on the plaint that the employé, Havard, received the bank of the river. The locality is maritime injury from which he died while he "was sit- (standing on a barge lying in the Mobile ting or standing upon a laden schooner in river, a navigable stream, when injured); Mobile river alongside of a barge which in and the service being rendered by the deturn was moored in Mobile river to the dock," ceased when injured was likewise maritime and while he "was engaged for said employer (tallying or grading, or both, lumber as it in grading and/or tallying lumber then being was unloaded from the barge into the mill unloaded from said barge," and from thence of the defendant on the bank of the river. carried or carted into the yard or mill of de. Because this work of checking or tallying fendant. When injured and killed deceased the lumber by the decedent could have been was sitting or standing upon a laden schoon- performed by him on the land does not ren. er in Mobile river, and was employed for his der the service nonmaritime. said employer, the defendant, in grading and The first and second headnotes in State tallying, or in grading or in tallying, lumber Ind. Com. v. Nordenholt Corp., 259 U. S. then being unloaded from the barge. The 263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. L. locus of the injury was on a barge moored R. 1013, read as follows: in the Mobile river, a navigable stream, which makes it maritime. He was when in-board a vessel lying in navigable waters, sus

“(1) When an employé, while working on jured standing on a laden schooner in the tains personal injuries there and seeks damMobile river. Were the services being per- ages from his employer, the liability of the formed by the employé at the time of the in- employer must be determined under the mari. jury under contract with the defendant time law. maritime? It so appears from the amended “(2) But where the injuries oceur while the complaint. The deceased, Havard, was at employé is engaged in unloading the vessel on the time of the injury grading and tallying, land the local law has always been applied." or grading or tallying, lumber then being unloaded from the barge for the defendant's

In Newham v. Chile Expl. Co., 232 N. Y: mili. This service is necessary in unloading 37. 133 N. E. 120, 25 A. L. R. 1018, the court

said: ships or barges laden with lumber.

In Southern Pacific Co. v. Jensen, 244 U. S. "The weighing, inspecting and measuring of 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. the cargo of a vessel constitute maritime serp. 1918C, 451, Ann. Cas. 1917E, 900, Chris Jen- ice," sen, the deceased, was engaged on board of a ship in unloading it at the wharf in navi- / -and quoted the following from Robinson gable waters in New York when killed; the ". The C. Vanderbilt (D. C.) 86 Fed. 785: court saying:

"Whatever is done to operate a ship, to aid “The work of a stevedore in which the de- sion, viz., to take freight or passengers, to

her physically in the performance of her misceased was engaging is maritime in its nature; carry freight or passengers, to unload freight his employment was a maritime contract; the

or passengers, and to preserve her while so injuries which he received were likewise mari

doing, is a maritime service." time; and the rights and liabilities of the parties in connection therewith were matters clear

The appellant insists this question was setly within the admiralty jurisdiction."

tled in her favor by the principle declared in

Grant-Smith-Porter Ship Co. v. Rohde, 257 In Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 V. §. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 25

A. L, R. 1008. We do not think it is a parL. R. A. (N. S.) 1157, the court wrote:

allel case to this one. There a carpenter “ 'The jurisdiction of the admiralty does not was employed to aid in the construction of depend upon the fact that the injury was in a ship which was partly completed, and had flicted by the vessel, but upon the locality- been launched into the water, but had not the high seas, or navigable waters where it entered upon marine service. While engaged occurred. Every species of tort, however occurring, and whether on board a vessel or not, in completing the vessel, and while it was if upon the high seas or navigable waters, is moored in navigable waters, the carpenter of admiralty cognizance.'

The libel- was injured on board the vessel, and the ant was injured on a ship, lying in navigable court held the Workmen's Compensation Act waters, and while he was engaged in the per- 1 of the state of Oregon (Laws 1913, c. 112)

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applied, because the contract to build or aid, and statutes. This is clearly pointed out in in building the ship was nonmaritime, al- Grant-Smith-Porter Ship Co. y. Ronde, 357 though the tort which produced the injuries U. S. 469, 42 Sup. Ct. 157, 66 L. Ed. 321, 3 was maritime, as it occurred on navigable A. L. R. 1008; The Mercedes de Larrinaga waters. The plaintiff in that case was in-|(D. C.) 293 Fed. 251. See, also, Southern Pae. jured upon a navigable stream, but the serv- Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, ice being performed by him at the time was 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. nonmaritime; the ship had not been com- Cas. 1917E, 900; Knickerbocker Ice Co. 5. pleted, had not been delivered, had not en- Stewart, 253 U, S. 149, 40 Sup. Ct. 433. 64 tered the maritime service, so the Workmen's L. Ed. 834, 11 A. L. R. 1145; Western Fuel Compensation Act of the state of Oregon Co. v. Garcia, 257 U. S. 233, 42 Sup. Ct. 59, applied.

66 L, Ed. 210. In Zampierie v. Spencer & Son, 194 App. So, under these authorities, we must hold Div. 576, 185 N. Y. Supp. 639, the court said: that the locus of the tort was maritime, the “ 'Stevedore' and 'longshoreman' are'synon

services which the decedent was performing ymous terms, when interpreted in the light of at the time he was injured, which caused the work they perform, viz. loading and unload- his death, were maritime, and the contract ing vessels. The checker is important and nec- of employment was in its very nature mari. essary, if account is to be kept of

time; and the Workmen's Compensation Act the commodities so handled.”

has no application. The jurisdiction of the

federal court in admiralty in such matters The contract of deceased was to tally and was exclusive when the Workmen's Compengrade the lumber as it was unloaded from the sation Act was approved on August 23, 1919, barges in the navigable stream. This was to go into effect on January 1, 1920, and this necessary to keep an account of the amount act does not attempt to confer jurisdiction of the lumber unloaded from the different of such actions on the state courts. Knickbarges. This contract and the services ren-erbocker Ice Co. v. Stewart, 2:53 U. S. 149. dered under it were in their very nature 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A, L. R. maritime, In Constantine v. The Schooner 1145; Western Fuel Co. v. Garcia, 257 t. River Queen (D. C.) 2 Fed. 731, the head- S. 233, 42 Sup. Ct. 89, 66 L. Ed. 210; State note reads as follows:

Ind. Comm. v. Nordenholt Corp., 259 L. S. “The weighing, inspecting and measuring of 263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. L the cargo of a vessel constitutes a maritime R. 1013; The Mercedes de Larrinaga (D. C.) service."

293 Fed. 251.

It appears on the face and in the body of It appears from the complaint the em- | the complaint as amended that the court has ployer, the defendant, was a lumber dealer no jurisdiction of this action under the operating a lumber yard and lumber plan- Workmen's Compensation Act. The demur. ing mill on the bank of this navigable stream rers of the defendant point it out, and the in the city of Mobile, and was, to use the court did not err in sustaining them. language of the complaint, regularly receiv- No necessity exists for us to discuss and ing large shipments of lumber by barges consider the other questions presented by docking at the wharf in front of or adjoin the record, assigned as errors and insisted ing his plant, the barges being towed or on in brief of appellant. brought to the wharf by tugs or tow boats The judgment is affirmed. on this navigable stream. The employé, the Affirmed. deceased, was employed by the defendant in that business in the "capacity of lumber in- ANDERSON, C. J., and SOMERVILLE, spector or grader”; his duty was to grade THOMAS, and BOULDIN, JJ., concur. and tally the lumber as it was unloaded from these barges and carried to the defend- GARDNER, J. (dissenting). I am of the ant's mill or yard. This made the contract opinion the amended complaint shows a case of employment in its very nature maritime. which should properly proceed in the state

It is true the parties in this cause under court, and that the judgment of the court the complaint contracted under the Work- below should therefore be reversed. men's Compensation Act; but the locality of The employer was engaged in the operathe injury was maritime; the service being tion of a planing mill and lumber yard on performed by the deceased at the time of the the banks of the Mobile river, and the eminjury was maritime, and the contract of ployé was engaged in grading or tallying the employment was in its nature maritime. If lumber as it was being unloaded for his emthis court made application of this statute to ployer's mill. The complaint discloses tbat the contract under these circumstances, it the parties had placed themselves within would necessarily work material prejudice the provisions of the Workmen's Compensato a "characteristic feature of the general |tion Act, and it therefore appears that the maritime law," and it would interfere with contract of employment had in contemplathe proper harmony or uniformity of that tion compensation under said act in the law in its interstate relations, which is not event of injury to the employé. The em. permissible under the federal Constitution ployé was standing upon a schooner which

case.

merce.

*

(100 So.) was moored in Mobile river alongside of a , Ahala, was nonmaritime. So, also, in the barge which was also moored in the river instant case, the employer was engaged in to the dock at the employer's plant. He was the business of running a planing mill and engaged in tallying the lumber then being lumber yard; certainly a nonmaritime busiunloaded when the accident occurred, result- ness. Therefore it appears that neither the ing in his death,

employment nor the activities of the employé, The majority opinion seems to rest ex or those of his employer, have any direct clusively, as I read and understand it, upon relation to navigation or commerce. He and the fact that at the time of the injury the his employer had contracted with reference employé was upon a schooner in navigable to compensation under the Workmen's Comwaters. But in cases of this character the pensation Law of the state, and the applicalocality of the injury is not the sole and tion of our state law can certainly in no exclusive test; the services to be performed manner materially affect any rules of the must also be of a maritime nature. This ! sea or interfere with the uniformity of the was illustrated in Grant-Smith-Porter Co. v. maritime law. Rohde, 257 U. S. 469, 42 Sup. Ct. 157, 66 As previously stated, and as recognized in L. Ed. 321, 25 A, L, R. 1008, which, in prin- the majority opinion, the work of grading or ciple, in my opinion, controls in the instant tallying this lumber may have been perform

At the time of the injury Rohde, in ed as well upon the land as upon the schoonthe case just cited, was working upon a ves er in the navigable waters. Rohde's Case, sel in navigable waters, but his employment supra, is decisive to the effect that the mere was not of a maritime nature. It was there- fact the employé happened to be at the time fore held that the Workmen's Compensation upon the navigable waters does not make Law of the state of Oregon applied, the court out a case for admiralty jurisdiction. saying:

I respectfully submit there is nothing in “The contract for constructing the Ahala was this case upon which to rest the admiralty nonmaritime, and although the incompleted jurisdiction, save alone the locality of the structure upon which the accident occurred was injury, which, as above shown, is insuffllying in navigable waters, neither Rohde's gen- cient in the absence of services of a marieral employment, nor his activities at the time time nature. I consider the holding of the had any direct relation to navigation or com- majority a matter of great importance, and,

This conclusion accords with Southern Pacific Co. v. Jensen, 244 U. S. 205; having become fully persuaded that the state Chelentis v. Luckenbach S. S. Co., 247 U. s. courts have full jurisdiction, I have deemed 372; Union Fish Co. v. Erickson, 248 U. s. the question of sufficient interest to briefly 308; and Knickerbocker Ice Co. v. Stewart, 253 state my views. U. S. 149. In each of them the employment or I respectfully dissent. contract was maritime in nature and the rights and liabilities of the parties were prescribed by

SAYRE, J., concurs in the foregoing disgeneral rules of maritime law essential to its

sent.
proper harmony and uniformity. Here the par-
ties contracted with reference to the state stat-

On Rehearing.
ute; their rights and liabilities had no direct
relation to navigation, and the application of PER CURIAM. Upon a reconsideration
the local law cannot materially affect any rules of this cause Justices SOMERVILLE and
of the sea whose uniformity is essential.” BOULDIN withdraw their concurrence in

In Ind. Comm, .v. Nordenholt, 259 U. s. the former opinion and concur in the dissent-
263, 42 Sup. Ct. 473, 66 L. Ed. 933, 25 A. ing views of Justice GARDNER. The dis-
L. R. 1013, many of the authorities from the senting opinion of Justice GARDNER is
United States Supreme Court discussing this therefore concurred in by Justices SAYRE,
question were reviewed, and it was pointed SOMERVILLE, and BOULDIN, and on re-
out wherein the New York courts had mis- hearing the dissenting opinion is adopted as
applied many of these decisions. Among the the opinion of the court.
cases commented upon is that of Sou. Pac.

Application for rehearing is granted. The
Co. V. Jensen, supra, upon which much stress former judgment of affirmance is set aside,
is laid in the majority opinion in the instant and the judgment of the court below is re-
case, and wherein it is pointed out that the versed, and the cause remanded.
work of a stevedore, in which service Jensen
was engaged, was maritime in its nature, SAYRE, SOMERVILLE, GARDNER, and
his employment a maritime contract, and BOULDIN, JI., concur.
the injury likewise maritime.

ANDERSON, C. J., and MILLER, J., disHere the contract is not of a maritime sent. nature; the employé was only engaged in grading and tallying lumber, which may

THOMAS, J. (dissenting). I concur in all have been done as well upon the docks as respects in the dissent by Mr. Justice MIL upon the schooner, where he happened to be. LER, and merely wish to say that the quesIn the Rohde Case, supra, the court called tion now decided was not suggested or preattention to the fact that the contract of sented in Tennessee River Nav, Co. v. Walls, employment for constructing the vessel, the 209 Ala. 321, 96 South. 266.

C

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1922, this litigation followed, resulting in a PETERS V. PILCHER. (4 Div. 124.) judgment against him—from which this ap

peal is prosecuted. (Supreme Court of Alabama. May 29, 1924.

[1] The defendant fully recognized the gen. Rehearing Denied June 26, 1924.)

eral, rule that a tenant is not permitted to 1. Landlord and tenant m61_Tenant cannot deny the title of his landlord, and made an į deny landlord's title.

effort to bring his case within some exception In general a tenant cannot deny his land- to the rule, as where the landlord's title has lord's title.

been extinguished or changed for the worse

subsequent to the rental contract-citing, 2. Landlord and tenant Om75(1) -Lease held among other authorities, Sadler v. Jefferson, to permit subletting.

143 Ala. 669, 39 South. 380; Davis v. WilLease for years, not requiring lessee to liams, 130 Ála. 530, 30 South. 488, 54 L move on the premises, or build a room to the R. A. 749, 89 Am. St. Rep. 55. house, nor restricting subletting, impliedly permitted subletting. :

[2] It appears that the plaintiff had pre

viously rented this land from the owner, J. 3. Evidence Om441(4)-Written lease presum- D. Holman, for a period of five years and

ed to contain entire contract merging pre- this written lease was introduced in evi. vious agreements.

dence. It bears date December 12, 1921, and With certain exceptions, a written lease is bears every evidence of being a full and 'presumed to contain the entire contract, all the complete contract between the parties, and is stipulations and promises the parties intended

as follows: to make and assume, merging all previous negotiations and parol agreements.

"Ozark, Ala. Dec. 12, 1921.

"State of Alabama, Dale County. This trade 4. Evidence On 441(4) Parol agreement and agreement made by and between J. D. Hol

against subletting, inadmissible to contradict man as party of the first part and S. R. Pilcher lease implying the right.

as party of the second part witnesseth that Where, 'under written lease, lessee had im- | party of the first part has this day rented to plied right to sublet, evidence of a parol agree- | party of the second part his place in Geneva 'ment to the contrary, in an action for rent, was county known as the Price place for a cerm of inadmissible.

five years covering the crop years 1922, 1923,

1924, 1925 and 1926 for which party of the 5. Evidence w 424—Strangers to written in second part has this day signed his several rent strument may contradict it by parol evidence. notes for $112.50 each due on Oct. 1 of each

Strangers to a writing, and not bound year. thereby, may, when it is introduced to affect "Party of the second part rents the place their rights, contradict it by parol, the parol just as it is and agrees to do all necessary work evidence rule applying to parties to the instru- that is needed on the place at his own expense, ment only.

and is to keep the place in good state of re6. Evidence m424_Sublessee not stranger to pairs and to keep the fences terraces, and other

repair work in good shape. lease so as to contradict it by parol.

"It is agreed that all litter and stalks are to In lessee's action for rent against sublessee, | be turned under for fertilizer each year, and 'sublessee having, and exercising, right of pos- not burned and no wood nor lightwood is to session, was not stranger to lessee's lease with be hauled off the place while this contract is in the owner, in the sense that he could intro- force. duce parol evidence to vary and contradict its “Party of the second part agrees to take good terms to defeat recovery.

care of the place in every way just as if it were his own.

"Written in duplicate on this the day above Appeal from Circuit Court, Geneva Coun- written.

J. D. Holman. ty; H. A. Pearce, Judge,

“S. R. Pilcher."

“Witness: Action on rent note by S. R. Pilcher against

"J. G. Whitman. E. D. Peters. Judgment for plaintiff, and "R. R. Holman. defendant appeals. Transferred from Court "T. F. Hayes. of Appeals under section 6, Acts 1911, p. 449. Affirmed.

It is to be observed the contract contains

no provision requiring the lessee to move upH. L. Martin, of Ozark, for appellant. on the premises or to build a room to the W. 0. Mulkey, of Geneva, for appellee. house, or restricting the lessee as to the

right of subletting the property. Under the

contract as thus entered into between the GARDNER, J. Appellant rented from ap- parties the tenant had the right to underlet pellee for the year 1922 a farm known as the the premises, J. D. Holman place. He went into posses

"As the owner of a well-defined interest or sion, cultivated the land, and failing to pay estate in lands, a tenant for years, unless rethe rent to appellee, for which he had exe- strained by the covenants and conditions in his cuted his promissory note due September 1, lease, may underlet the premises, or any part

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