Patrone v. M.P. Howlett, Inc.

Citation143 N.E. 232,237 N.Y. 394
PartiesPATRONE et al. v. M. P. HOWLETT, Inc.
Decision Date19 February 1924
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Action by Frances Patrone and another, as administrators of the estate of Nicholas Patrone, deceased, against M. P. Howlett, Inc. Judgment of Trial Term, entered upon the verdict for plaintiff, was modified and affirmed by the Appellate Division, Second Department (207 App. Div. 856,201 N. Y. Supp. 930), and defendant appeals.

Affirmed.

See, also, 237 N. Y. 534, 143 N. E. 731.

Appeal from Supreme Court, Appellate Division, Second Department.

James J. Mahoney and George J. Stacy, both of New York City, for appellant.

William S. Butler and James A. Gray, both of Brooklyn, for respondents.

POUND, J.

The question is whether the court properly instructed the jury that the rule of comparative negligence was applicable to the action.

It is contended by the appellant that because the action was brought in the state court, contributory negligence was a complete defense under our ruling in Groonstad v. Robins Dry Dock & Repair Co., 236 N. Y. 52, 139 N. E. 777.

The point is not made on its brief or on the record that the state court was without jurisdiction of this action.

The exception is ‘to that portion of your honor's charge wherein you discussed the question of the proportion of damages.’

Plaintiffs stand on the act of Congress of June 5, 1920 (U. S. Comp. Stat. 1923, Supp. p. 2390), known as the Jones Act, which adopts the rule of comparative negligence. Deceased was a seaman injured in the course of his employment, and thus within the terms of the act.

The question is as yet unsettled by a decision of the United States Supreme Court as to whether the state courts have jurisdiction of an action under the act of Congress. The act says:

‘Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.’ Section 8337a.

Justice Hotchkiss held at Special Term (Nox v. United States Shipping Board Emergency Fleet Corporation [Sup.] 193 N. Y. Supp. 340) that the federal District Court had exclusive jurisdiction. So, also, Justice Dike (Prieto v. United States Shipping Board Emergency Fleet Corporation, 117 Misc. Rep. 703,193 N. Y. Supp. 342), and Cushman, District Judge, in Wenzler v. Robin Line S. S. Co. (D. C.) 277 Fed. 812, 817.

On the other hand, the Appellate Division, Second Department, held that the state court had jurisdiction in Tammis v. Panama R. Co., 202 App. Div. 226,195 N. Y. Supp. 587. So, also, the Fourth Department in Lynott v. Great Lakes Transit Corporation, 202 App. Div. 613,195 N. Y. Supp. 13, which we affirmed 234 N. Y. 626, 138 N. E. 473. See, also, Flynn v. Panama R. Co. (1st Dept.) 205 App. Div. 871,198 N. Y. Supp. 913.

In the Groonstad Case, 236 N. Y. 52, 139 N. E. 777, deceased was not a seaman. He was the employe of a dry dock company. The state statute was the only basis for the death action, although death occurred in the navigable waters of the United States and the maritime law as modified by statute applied. In Maleeny v. Standard Shipbuilding Corporation, 237 N. Y. 250, 142 N. E. 602, where we held that contributory negligence was a defense in an action to recover damages for personal injuries, based on a maritime tort, the plaintiff was not a seaman and his only remedy was under the local practice.

[1] Here the appellant seeks to get the benefit of the Groonstad Case by arguing in effect that this action must have been under the state statute, because the state court would not have jurisdiction of an action under the federal statute; in effect, that plaintiffs had a choice of remedies and elected to proceed in the state court under the state statute. But plaintiffs did not have a remedy under the state act after the Jones Act occupied the field and became a part of the general maritime law (Western Fuel Co. v. Garcia, 257 U. S. 233, 241, 42 Sup. Ct. 89, 66 L. Ed. 210), and therefore on the face of the record had no election and made none.

The trial justice submitted the case properly under the act of Congress and not under the state statute, although he did not mention either statute. He committed no error unless it was the radical error of assuming jurisdiction when the court had none.

[2] Jurisdiction herein relates to the subject-matter of the action and cannot be conferred by consent. The court may of its own motion dismiss the action where it has no jurisdiction of the...

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13 cases
  • Lindgren v. United States 25 28, 1929
    • United States
    • U.S. Supreme Court
    • 24 Febrero 1930
    ...resulting from his death, and that no state statute can provide any other or different one.' To the same effect is Patrone v. Howlett, 237 N. Y. 394, 397, 143 N. E. 232, 233, in which the court said that the administrators of a seaman killed in the course of his employment, 'did not have a ......
  • Resigno v. F. Jarka Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • 29 Mayo 1928
    ...That such provisions did not exclude the jurisdiction of the Supreme Court of this state in a proper case, see Patrone v. Howlett, Inc., 237 N. Y. 394, 143 N. E. 232. If the above reasons be sound, it follows that the judgments below should be reversed, and the motion for judgment on the pl......
  • Northern Coal Dock Co v. Strand
    • United States
    • U.S. Supreme Court
    • 10 Diciembre 1928
    ...secure damages resulting from his death, and that no state statute can provide any other or different one. See Partrone v. M. P. Howlett, Inc., 237 N. Y. 394, 143 N. E. 232. The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with......
  • Great Lakes Stages, Inc., v. Pub. Util. Comm.
    • United States
    • Ohio Supreme Court
    • 1 Mayo 1929
    ...South Park Commrs., 215 Ill. 200, 74 N.E. , 125; People v. Industrial Savings Bank, 275 Ill. 139, 113 N.E. , 937; Patrone v. M.P. Howlett, Inc., 237 N.Y. 394, 143 N.E. , 232; Williams v. Hankins, 75 Colo. 136, 225 P. 243; Ex parte Hall, 94 N.J. Eq., 108, 118 A., 347; In re Dick's Estate, 27......
  • Request a trial to view additional results

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