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June 16, 1950


The opinion of the court was delivered by: KNIGHT

This is a motion for summary judgment under Rule 56 of Federal Rules of Civil Procedure, 28 U.S.C.A., pending since 1945.

The complaint, filed February 15, 1945, alleges that plaintiff is a citizen of New York State and defendant a Maryland corporation, owner of a building in Buffalo, N.Y. known as Buffalo Flour Mills; that, on November 14, 1944, there was attached to said building 'a marine leg' which was used to unload into it grain from vessels; that said building had a dock adjoining a navigable stream on which was located a barge from which grain was being unloaded; that, while decedent was on said barge, a boom forming a part of the marine leg attached to said building fell striking and injuring him, as a result of which he died without any fault on his part; that he was lawfully working on barge but was not an employee of defendant; that said accident was caused by defendant's negligence more particularly because 'the marine leg and the parts and attachments thereto, were defective and improperly adjusted or attached and failed to hold said boom' and defendant failed properly to care for, maintain and inspect it and 'such leg and boom and parts thereof were being negligently used'; that decedent was a healthy, capable individual and died leaving his dependent wife, plaintiff herein, and his two dependent children, Elaine Wendelen, born May 17, 1936, and Fay Wendelen, born October 17, 1938; that he was 36 years old and 'a kind, loving and helpful husband and father.' Plaintiff demands $ 5,000 for pain suffered by decedent prior to his death, and $ 125,000 for 'large expenses for medicines, medical and surgical treatment and attendance, hospital bills, funeral expenses.' The complaint does not specifically allege when decedent died. It demands a jury trial.

 The answer, filed April 4, 1945, sets up four defenses: (1) denies negligence; (2) alleges that decedent was an employee of defendant 'engaged in a maritime employment on navigable waters of the United States', where the fatal accident occurred; that defendant had duly complied with the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., which furnished plaintiff's exclusive remedy; (3) contributory negligence of deceased; (4) specific denial of defendant's negligence.

 The return day of the motion for summary judgment was October 12, 1945. Attached to the motion were the following affidavits:

 Frank Sam Birkenmeyer, defendant's vice president, alleges (October 8, 1945) that defendant is a Delaware corporation authorized to do business in New York; that it is owner and occupant of premises described in complaint and deceased was in its employ when injured and working on barge which it owned; that it owned the grain; that the employment was maritime and in navigable waters of the United States; that defendant had secured insurance provided for by Longshoremen's and Harbor Workers' Compensation Act with American Motorists Insurance Co. and the policy (a photostat of which was annexed) was in effect; that defendant kept posted in a conspicuous place on said premises the printed notice prescribed by said Act; that since April 15, 1944, a contract (copy of which is annexed) was in force between defendant and Local 1286 of International Longshoremen's Union relating to type of service performed by deceased and this was the only contract in existence at time of accident; that there is a New York corporation known as 'Buffalo Flour Mills Corporation', of which deponent is vice president, but it has never owned the premises in question, been an occupant thereof or conducted any operations there since 1937, was not decedent's employer and had no control over him, had no employees, property nor money in bank, that the telephone listed under its name is actually defendant's telephone; that said Corporation, having no employees, had no contract with any union, that it annually reports to New York State that it has no assets, no liabilities, and performs no operations, all of which was annexed) was in force between was annexed).

 Richard J. Wiegley and Clarence Brost, in a joint affidavit of October 8, 1945, allege they were employed exclusively by defendant and signed checks for it upon its 'Pay Roll Account' drawn upon Manufacturers and Traders Trust Co., Buffalo, N.Y. Photostats of 5 checks are annexed, dated October 28, November 2, 9, 16 and 17, 1944, drawn by defendant and payable to 'C. Wendelen' and the last 2 by 'Estate of C. Wendelen- Inza Wendelen Administrator.' All 5 are signed by 'R. Wiegley' and countersigned by 'C. Brost.' Both affiants allege that they are familiar with decedent's signature and that it appears on the endorsements of the first 3 checks.

 Donald Gregory Haney, defendant's elevator superintendent at said premises alleges (October 8, 1945) that since April 15, 1944, a contract was in effect between defendant and said Local 1286; that in accordance with said contract and being in need of services of that Union's men, deponent communicated with its business agent and there was sent to him decedent, whom he hired solely for defendant and put upon its pay roll; that, at time of accident, decedent was solely employed by defendant in unloading a barge upon navigable waters at defendant's dock at premises owned by defendant and commonly known as 'Buffalo Four Mills.'

 The deposition of said Frank Sam Birkenmeyer was taken on January 22, 1946, March 4, 1948, and January 10, 1949.

 On January 22, 1946, Birkenmeyer testified he was defendant's vice president since 1933 and is manager of Buffalo Flour Mills Corp., which operates as a unit but does not file any social security or unemployment insurance reports; that defendant Commander Larabee Milling Company is a Delaware corporation; that the two corporations are separate; that defendant employs members of International Longshoremen's Union for elevator work and members of Flour Mill Workers' Union for mill work- both being A.F. of L. unions; that defendant owned the premises at pace and date of accident and also the barge; that deceased was sent by International Longshoremen's Union and employed and paid by defendant; that he was never hired by Buffalo Flour Mills Corp., which had no employees in Buffalo, N.Y. and owned no property in New York State; that Buffalo Flour Mills Corp. 'is an operating or trade name * * *. It is used merely to designate this particular unit in the same manner as we use other mill names to identify other units in different parts of the country'; that defendant has a telephone listing under name of Buffalo Flour Mills Corp. for convenience of people in Buffalo, N.Y.; that decedent's immediate superior was Mr. Haney, employed by defendant; that defendant owns 100% of stock of Buffalo Flour Mills Corp. and Mr. R. W. Goodell is president of both corporations; that the latter 'is a corporation without assets and liabilities.'

 The deposition of Frank S. Birkenmeyer was continued on March 4, 1948, when he produced certain records. He was positive there was no contract between defendant and Buffalo Flour Mills Corp.

 The deposition was further continued on January 10, 1949. Birkenmeyer was questioned in detail about stock certificates of Buffalo Flour Mills Corp. and then about its certificate of incorporation stating the purposes for which it was formed. Plaintiff's counsel then questioned him at length about various resolutions of its board of directors.

 Longshoremen's and Harbor Workers' Compensation Act was in effect at time of this fatal accident and contained these provisions:

 'Sec. 903. (a) Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law * * *.

 'Sec. 904. (a) Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under sections 907, ...

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