Pacific American Fisheries v. Hoof

• Decision Date: 02 July 1923
• Docket Number: 3992.
• Citation: 291 F. 306
• Parties: PACIFIC AMERICAN FISHERIES v. HOOF. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

291 F. 306

PACIFIC AMERICAN FISHERIES v. HOOF. ^[1]

No. 3992.

United States Court of Appeals, Ninth Circuit.

July 2, 1923

This was an action to recover damages for personal injuries. At the time of the accident the plaintiff was in the employ of the defendant as watchman on the steamer Cleo, then under construction. But while the vessel was still in course of construction she had been launched and was afloat in navigable waters. As the plaintiff was making his rounds as watchman on a dark and rainy night, he attempted to descend a ladder leading from one deck to another, and, as he did so the ladder slipped and fell, precipitating him to the deck below, and causing the injuries complained of. The action was originally commenced as a common-law action in the state court, but was removed to the federal court on petition of the defendant on the ground of diversity of citizenship. After the removal a demurrer to the complaint was sustained for the reason that the right of action, if any, had been taken away by the Workmen's Compensation Act of the state. The judgment of dismissal was reversed by this court upon the ground that the complaint stated a cause of action in personam in admiralty (Hoof v. Pacific American Fisheries (C.C.A.) 279 F. 367), and upon remand the case was transferred from the law side to the admiralty side for trial. Upon final hearing the court found 'that the steps were substantially fastened at the time the ship was launched by cleats, and if fastened at the top and bottom the steps could not have fallen; and that the steps were not changed from the launching to the day of the accident. On the day of the accident the main deck was calked and oiled and the cleats on the main deck at the foot of the ladder were removed while calking and oiling the deck and the steps were replaced without fastening the cleats to the deck and without fastening the steps at the top. The plaintiff was not advised of the changed condition of the steps. ' A decree was accordingly entered in favor of the libelant for the sum of $4,000, from which this appeal is prosecuted.

Evan S McCord and Stephen V. Carey, both of Seattle, Wash., for appellant.

Thos R. Waters and Gomer Thomas, both of Bellingham, Wash., for appellee.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN Circuit Judge (after stating the facts as above).

In support of the appeal it is claimed: First, that the evidence is insufficient to support the finding of negligence. Second, that the negligence, if any, was the negligence of a fellow servant. Third, that the court below was without jurisdiction because of the Workmen's Compensation Act of the state (Laws 1911, p. 345); and, fourth, that if the appellee is entitled to recover at all, his recovery should be limited to wages, maintenance, and cure.

In cases of this kind the rule is well settled that an appellate court will not disturb the findings of the trial court based on conflicting testimony taken in open court except for manifest error. That there was conflicting testimony here does not admit of serious question. But the court prefaced its general findings with the statement, 'I think it is established by positive testimony and inferences from circumstances adduced,' and complaint is made of the use of the expression 'inferences from circumstances adduced.' What circumstances the court had in mind we are not advised. Perhaps it was the undisputed fact that a ladder such as this will not ordinarily slip and fall if properly installed and maintained and other circumstances in the case; but whatever the allusion, it does not impair or lessen the effect of the general finding on the question of negligence.

The court held that the fellow-servant doctrine had no application to the case for two reasons: First, because the watchman and the painters and calkers had nothing in common and were not engaged in the same general enterprise; and, second, because the master failed to furnish and provide a reasonably safe working place. Whether a watchman and a painter and calker in the employ of the same master on board the same vessel are not fellow servants under the federal rule may admit of question, but the decree can be upheld on the second ground alone. The duty of the master to provide a safe working place and safe appliances is a positive and continuing one, and cannot be delegated. It was claimed on the trial that it was the duty of the appellee to inspect the ladder in question, but the court below found otherwise, and of that finding there is no complaint. If that duty did not devolve upon the appellee, it devolved upon some one else, and whoever discharged that duty represented the master, and his negligence was the negligence of the master. When the working place and appliances are unsafe, it is no answer to say that they were rendered unsafe at some previous time by the act of another servant. As already stated, the duty is a continuing one, and notice of defects and dangers will be imputed to the master where they could have been discovered by reasonable inspection and by the exercise of reasonable care.

On the former writ of error it was conceded that the state Compensation Act, abolishing the jurisdiction of courts and all rights of action for personal injuries in certain cases, does not extend to maritime torts, for which a remedy is given in admiralty; but it was there earnestly maintained by the defendant in error that this was not a maritime tort, that a court of admiralty was without jurisdiction, and that the Compensation Act therefore applied and took away all remedy except the special remedy therein provided. We there held that there was a remedy in admiralty, and that ruling is sustained by many recent decisions of the Supreme Court. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 Sup.Ct. 733, 58 L.Ed. 1208, 51 L.R.A.(N.S.) 1157; S.P. Co. v. Jensen, 244 U.S. 205, 37 Sup.Ct. 524, 61 L.Ed. 1086, L.R.A. 1918C, 451, Ann. Cas. 1917E, 900; Grant- Smith Porter Ship Co. v. Rohde, 257 U.S. 469, 42 Sup.Ct. 157, 66 L.Ed. 321; State Industrial Commission v. Nordenholt Corporation, 259 U.S. 263, 42 Sup.Ct. 473, 66 L.Ed. 933 (decided May 29, 1922); Great Lakes Dredge & Dock Co. v. Kierejewski, 43 Sup.Ct. 418, 67 L.Ed. . . . (decided April 9, 1923).

The questions determined on the former writ of error have become the law of the case for the court below and for this court. Roberts v. Cooper, 20 How. 467, 481, 15 L.Ed. 969; Standard Sewing Mach. Co. v. Leslie, 118 F. 557, 55 C.C.A. 323. This rule, however, does not preclude us from giving effect to later controlling decisions of the Supreme Court of the United States or of the state in a proper case. Messinger v. Anderson, 225 U.S. 436, 444, 32 Sup.Ct 739, 56 L.Ed. 1152. And in this connection our attention has been called to State Industrial Insurance Commission v. Nordenholt Corporation, supra, decided since this case was remanded to the court below. The conflict between the two cases is not apparent. The claim of conflict between the Washington Compensation Act and the admiralty law is based upon a misapprehension as to the scope and effect of the Compensation Act. In the...