Hoeffner v. National SS Co.

• Decision Date: 17 November 1924
• Docket Number: No. 4308.,4308.
• Citation: 1 F.2d 844
• Parties: HOEFFNER v. NATIONAL S. S. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

1 F.2d 844 (1924)

HOEFFNER v. NATIONAL S. S. CO.

No. 4308.

Circuit Court of Appeals, Ninth Circuit.

October 20, 1924.

Rehearing Denied November 17, 1924.

John J. Monahan, of San Pedro, Cal., for appellant.

Joe Crider, Jr., of Los Angeles, Cal., and Hettman & Hoge, of San Francisco, Cal., for appellee.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

ROSS, Circuit Judge.

The appellant, as administratrix of the estate of her deceased husband, John H. Hoeffner, libeled the appellee steamship company for damages in the sum of $20,000, and for $5,000 as exemplary damages, alleging, among other things, in substance, that on April 15, 1922, while the appellee's schooner Brunswick was in San Pedro harbor, Los Angeles, the deceased was employed to assist in the unloading of the schooner's cargo of lumber; that "while he was engaged in making up slings of lumber, so as to have them ready when the unloading should begin, the said vessel got under way and proceeded upstream from the San Pedro Lumber Company's dock, in San Pedro harbor, to which the vessel had been moored, to Blinn's lumber dock, also in said harbor of San Pedro; that while said John H. Hoeffner was so engaged, and the ship was proceeding upstream as aforesaid, the sling yielded a little, so that he tripped and fell overboard; that there were no life lines or life rails on the side of said vessel where the deceased was working, so that he could be protected; that the said vessel negligently continued on her way after deceased was precipitated into the water, and she proceeded about 500 feet upstream before stopping; that no boat was lowered to pick up the deceased, and that there were no life buoys thrown, and no effort was made, either by the master or crew of the said vessel, to save the deceased; and that as a result thereof the deceased came to his death by drowning."

The libel contained various other allegations respecting the alleged failure of the appellee to furnish and maintain a safe and suitable place for the deceased to work, to provide competent seamen or a sufficient number of seamen, to provide life rails or lines on that part of the deck where the deceased was employed, and the alleged neglect of the master or crew of the schooner to do anything for the rescue of the deceased after his falling overboard. Upon the coming in of the respondent's answer the case was referred by the court to its commissioner directing him to take testimony, make findings of fact, and recommend appropriate conclusions of law, which he did to the effect that the libelant was entitled to recover from the respondents the sum of $14,400 as compensatory damages and an additional $1,000 as punitive damages.

After full and careful consideration the court below sustained exceptions to the commissioner's report, and re-referred the case to him for a new hearing, or for such other action as might be deemed appropriate by the respective parties. The libelant having failed to take any further action, a final decree of the court was entered dismissing the libel.

The evidence in the case shows that the deceased and one Gallagher were employed as longshoremen to unload the lumber that was on the deck of the schooner at its forward end, a part of which had just been unloaded at the San Pedro yard. The deceased and Gallagher were employed just before the vessel was to be moved from the San Pedro to the Blinn yard. The testimony of Gallagher, which seems to be the clearest and most specific regarding the manner in which the accident happened, is as follows:

"Mr. Asherman was sent on the dock to loosen the lines, to let go the ship. They were going to move; that is, to the Blinn yard from the San Pedro yard. Mr. Hoeffner came to me and said, `I'll work partners with you.' I said, `Very well.'

"Q. Is this Mr. Hoeffner, the deceased in this case? A. Yes; at that, the mate told us to go on to work. I looked at the clock in the wheelhouse. It was exactly 3 minutes after 8. We went forward, which I would call, well, the forward end of the ship, to prepare the loads of lumber that was to be discharged at Blinn's, which consisted of redwood. I consider the planks about 2 by 12 and about 25 to 30 foot long. They were about 6 — well between 5 and 6 — high, with a double plank, which meant...