Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, District Judge.
Before MAJOR and KERNER, Circuit Judges, and BRIGGLE, District Judge.
This is an appeal from an order, entered August 23, 1940, dismissing plaintiffs' complaint, predicated upon Sec. 21(b) of the Longshoremen's and Harbor Workers' Compensation Act, (hereinafter called the "Act"). Title 33, U.S.C.A., Chap. 18, Sec. 901 et seq., made applicable to the Dist. of Columbia, 45 Stat. 600 D.C.Code 1929, T. 19, §§ 11, 12, 33 U.S.C.A. § 901 note. The complaint sought to review and set aside an award by a Deputy Commissioner of the United States Employees' Compensation Commission, in favor of Grace V. Lockas and minor children for benefits provided by the Act, on account of the accidental death of Herman James Lockas.
The complaint, so far as material to the issues presented on this appeal, alleged:
"(a) The record shows that the deceased, Herman James Lockas, was employed as a cook and was a member of the crew of the employer's towboat 'Gladys M.'
"(b) The record shows that the deceased, Herman James Lockas, was not performing any duties of his employment at the time he fell and was drowned."
Paragraph (a) was predicated upon Sec. 3(a), 33 U.S.C.A., P 903, which provides:
" * * * No compensation shall be payable in respect of the disability or death of -
"(1) A master or member of a crew of any vessel * * * ."
Paragraph (b) was predicated upon Sec. 2(2) of the Act, which provides: "The term 'injury' means accidental injury or death arising out and in the course of employment * * * ."
There was attached to the complaint as exhibits, a copy of the application for compensation, plaintiffs' answer thereto, a transcript of the evidence taken and heard before the Deputy Commissioner, and the Deputy Commissioner's order awarding compensation including "findings of fact." The material portion of said findings is as follows: " * * * That on said day the deceased employee herein while performing service for the employer upon the navigable waters of the United States, sustained personal injury resulting in his death, while employed as a cook and general handyman on board the towboat 'Gladys M'; that on the evening of said date, the vessel 'Gladys M' was afloat upon the navigable waters of the United States at Joliet, Illinois, and the deceased employee fell overboard and was drowned, which accident arose out of and in the course of the employment of the deceased employee herein, etc. * * * "
It is to be noted there was no direct finding that the deceased was not a "member of a crew." There is not a scintilla of evidence to support "and general handyman" as found. It is conceded that he was employed and acted solely in the capacity of a cook.
There was filed on behalf of the Deputy Commissioner, and also on behalf of the widow and minor children, separate motions, identical in substance, to dismiss the complaint. As to the allegation of the complaint ...