237 N.Y. 394, Patrone v. M.P. Howlett, Inc.

Citation:237 N.Y. 394
Party Name:FRANCES PATRONE et al., as Administrators of the Estate of NICHOLAS PATRONE, Deceased, Respondents, v. M. P. HOWLETT, INC., Appellant.
Case Date:February 19, 1924
Court:New York Court of Appeals

Page 394

237 N.Y. 394

FRANCES PATRONE et al., as Administrators of the Estate of NICHOLAS PATRONE, Deceased, Respondents,

v.

M. P. HOWLETT, INC., Appellant.

New York Court of Appeal

February 19, 1924

Submitted January 11, 1924.

Page 395

COUNSEL

James J. Mahoney and George J. Stacy for appellant. The action was brought in the state court, decedent's contributory negligence defeats the action, and the trial court erred in charging otherwise. (Groonstad v. Robins D. D. & R. Co., 236 N.Y. 52.)

William S. Butler and James A. Gray for respondents. The charge of the learned court on contributory negligence was correct. (Lynott v. G. L. Transit Corp., 202 A.D. 619; 234 N.Y. 626.)

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).

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

Page 396

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 thecourt of the district in which the defendant employer resides or in which his principal office is located.'

Justice HOTCHKISS held at Special Term (Nox v. U.S. S. S. Board, 193 N.Y.S. 340) that the federal district court had exclusive jurisdiction. So, also, Justice DIKE (Prieto v. U.S. S. Board, E. F. C., 117 Misc. 703) and CUSHMAN, Dist. J., in Wenzler v. Robin Line S. S. Co. (277 F. 812, 817).

On the other hand, the Appellate Division, second department, held that the state court had jurisdiction in Tammis v. Panama R. R. Co. (202 A.D. 226). So, also, the fourth department in Lynott v. Great Lakes Tr. Corpn. (202 A.D. 613) which we affirmed (234 N.Y. 626). (See, also, Flynn v. Panama R. R. Co., [1st Dept.] 205 A.D. 871.)

In the Groonstad Case (236 N.Y. 52) deceased was not a seaman. He was the employe of a dry dock company....

To continue reading

FREE SIGN UP