(specially concurring).
In the DeBardeleben case [DeBardele-ben Coal Corp. v. Henderson], 5 Cir., 142 F.2d 481, this court, with the writer as its organ, went all the way in giving expression to the view implicit,' if not expressed, in the opinion that the Davis case, Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, was, as was held in the five to four decision in Pennsylvania R. Co. v. O’Rourke, 344 *549U.S. 334, 73 S.Ct. 302, 97 L.Ed. 367, one of special circumstances and, therefore, of little weight as an authority, and it might be expected that, like Ephraim joined to his idols, I would steadfastly adhere to the views therein expressed.
Of the view, however, that in and by the decision and opinion of the Supreme Court in Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed.2d 292, (1-12-59), the Davis case, supra, the stone which some of the builders refused as a stone of stumbling, a rock of offense, is become the head of the corner, I am come to the mourner’s bench, there to abjure my former heresy and to confess the error of my way. For a rereading and reconsideration of the opinion in Parker v. Motor Boat Sales, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, and Davis v. Department of Labor, supra, in the light of the Hahn decision, convinces me that this court in the DeBar deleben case, supra, in Flowers v. Travelers Ins. Co., 5 Cir., 258 F.2d 220, and my brother in his dissenting opinion in this case, has failed to accord to the Davis and Parker cases, their true scope and meaning. This, as it now appears to me in the light of the Hahn case, supra, and the many state court decisions1 giving effect to the “saving to suitors” provision, the Sec. 3(a) Proviso to the Longshoremen’s and Harbor Workers’ Act, is that, instead of those cases having been written to perpetuate what I have always regarded as the clearly erroneous teachings of the Jensen case [Southern Pac. Co. v. Jensen], 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, they were written for an exactly contrary purpose. This was to dispel the mists of pseudo-constitutionalism with which that case had enshrouded the law, to make way under the principle of election for the concurrent operation of state and federal law in a field from which confusion and uncertainty as to workers’ remedy should be entirely banished.
In Parker v. Motor Boat Sales, supra, a suit under the Longshoremen’s and Harbor Workers’ Act, 314 U.S. at page 248, 62 S.Ct. at page 224, 86 L.Ed. 184, the court, stating, “What we are called upon to decide is not of constitutional magnitude”, then goes on to say:
“There can be no doubt that the purpose of the Act was to provide for federal compensation in the area which the specific decisions referred to placed beyond the reach of the states. The proviso permitting recovery only where compensation ‘may not validly be provided by State law’ cannot be read in a manner that would defeat this purpose.”
The following quotations from the Davis case, where the proceeding had been brought under the Washington State Compensation Act, put the issue in clearer and sharper focus [317 U.S. 249, 63 S.Ct. 227]:
“This Court has been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must ‘be determined in view of surrounding circumstances as cases arise.’ Baizley Iron Works v. Span, 281 U.S. 222, 230, 50 S.Ct. 306, 307, 74 L.Ed. 819. * * *
“We are not asked here to review and reconsider the constitutional implications of the Jensen line of decisions. * * * Since 1917, Congress and the states have sought to restore order out of the confusion which resulted from the Jensen decision. That success has not finally been achieved is illustrated by the present case. The Longshoremen’s Act passed with specific reference to the Jensen rule, provided a partial solution. The Washington statute represents a state effort to clarify the situation. * * *
*550“.* * * We find here a state statute which purports to cover these persons, and which indeed does cover them if the doubtful and difficult factual questions to which we have referred are decided on the side of the constitutional power of the state. * * * In making the factual judgment there, we have relied heavily on the presumption of constitutionality in favor of the state statute. * * *
“Giving the full weight to the presumption, and resolving all doubts in favor of the Act, we hold that the Constitution is no obstacle to the petitioner’s recovery. * * * ”
And now the Iiahn case, making it clear that the Davis case is indeed “a stone, a hard stone, a precious corner stone”, Isaiah 28:16, has settled it that the jurisdiction in cases of this kind is not exclusive but concurrent, the injured person having an election to claim either.
Recanting my former errors, therefore, and rejoicing in the light from which my dissenting brother turns steadfastly away, I firmly but respectfully reject the view on which his dissent rests, that the decision of this case and cases like it turn on some imaginary twilight zone rather than, as I think they do, on the principle that the Longshoremen’s and Harbor Workers’ Act was not intended to provide an exclusive but a concurrent remedy with the election in the worker.
. Richard v. Lake Charles Stevedores, La. App., 95 So.2d 830, and the other state cases blithely rejected out of hand in the Flowers case as in violation of the Jensen rule.